In the world of partition actions in California, lawyers have misunderstood the California Court of Appeal opinion in Summers v. Superior Court (2018) 24 Cal. App. 5th 138 as meaning that the interests of parties in the proceeds of sale must be determined before the court can enter an interlocutory judgment for partition by sale. In reality, Summers v. Superior Court merely found that the ownership interests of the parties in the property must be determined, e.g., that the parties each own a 50% interest in the property, before a partition judgment can be entered.
Specifically, California Code of Civil Procedure 872.720(a) is the California partition statute that allows the court to enter an interlocutory judgment of partition, thereby finding that a partition will be entered in the case. The statute provides that:
If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.
Partition attorneys seeking to avoid the ruling that a partition judgment should be entered may try to quote only the following sentence in Summers v. Superior Court (2018) 24 Cal. App. 5th 138, 143: “The trial court’s ruling here failed to satisfy these elements because it ordered the property to be sold before the parties’ interests were resolved.” In turn, defendants in a partition action may mistakenly argue that “the interests of the parties in the property” that must be determined means the interests of the parties to any accounting claims of offset in a partition action. Indeed, almost every partition can include some type of claim of offset.
In reality, the phrase is in reference to the “ownership interests” of the parties. Indeed, this is made clear in Summers v. Superior Court (2018) 24 Cal. App. 5th 138, 143, which later “conclude[d] that the trial court lacked the authority to order the sale of the property before it determined the parties’ respective ownership interests.” In fact, Summers explained “the statute’s plain requirement that the parties’ ownership interests be determined before or when the manner of partition is decided.”
As summarized by one of the leading real property treatises, the Summers “trial court lacked authority to order sale of property before determining parties’ respective ownership interests; C.C.P. 872.270(a) makes clear that manner of partition must be decided when or after ownership interests are determined.” (ee) [§ 74] Interlocutory Judgment., 12 Witkin, Summary 11th Real Prop § 74 (2022)
In case this isn’t clear enough, Summers followed Stoffer v. Verhellen (1925) 195 Cal. 317, 318, where “[t]he plaintiff alleged ownership, as tenant in common with the defendant, of an undivided half interest in the property, with like interest in the defendant.” In Stoffer, “the defendant…den[ied] that the plaintiff had any interest in the property.” The Stoffer court concluded that, where “[t]he interlocutory decree entered in this case is entirely silent as to the quantity of interest of either of the parties to the proceedings, [it] is erroneous in that respect.”
In fact, a 2019 case explained this exact meaning of Summers as follows:
“Interests,” within the meaning of Code of Civil Procedure section 872.720, refers to ownership interests. Summers v. Superior Court (2018) 24 Cal.App.5th 138, 140, 143-144.
Green v. Green-Jordan (Cal. Ct. App. Sept. 6, 2019) No. E070721, 2019 WL 4233918, at *6 (unpublished).
Accordingly, “an interlocutory judgment in a partition action is to include two elements: a determination of the parties’ interests in the property and an order granting the partition,” i.e., that there has not been a waiver of the right to partition. (Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143, as modified (June 27, 2018).) The third element, “the manner of partition—i.e., a physical division or sale of the property—[can] be decided when…the parties’ ownership interests are determined.” (Id.)
Plaintiffs in partition actions must enforce their right to partition through skilled lawyering to ensure that courts correctly understand when a court may proceed to end the co-ownership relationship.
Code of Civil Procedure 872.720 CCP – Interlocutory Judgment of Partition (Partition Actions)
Contact an Experienced Partition Attorney in California
If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. Our knowledgeable partition lawyers have years of experience ending co-ownership disputes and can help you unlock the equity in your property. For a free, 15-minute consultation with an experienced partition attorney at Talkov Law, call (844) 4-TALKOV (825568), email us at info(at)talkovlaw.com, or fill out a contact form online. Contact Talkov Law today to find out how you can pay nothing today and have your legal fees paid from the proceeds of sale of your property!
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