A partition attorney plays a pivotal role in navigating the intricacies of ending real property co-ownership relationships, offering legal representation and strategic advice to secure a fair and equitable outcome for their clients. If discussions about managing the jointly owned property are not being taken seriously by your co-owner, retaining a partition attorney equips you with the necessary legal expertise and strategy to effectively manage the partition process. This article outlines what a partition attorney does to complete a partition action.
Writing a Demand Letter
An attorney may start off with a letter that clearly states your position in the dispute with a co-owner. The letter may delineate demands that carry legal consequences should your co-owner choose to disregard the communication. The letter will convey that the dispute will be escalated to a partition action if the issues cannot be resolved directly between you and your co-owner. At Talkov Law, we rarely write such letters as they only infrequently end the dispute.
Filing a Partition Complaint
In California, a partition action complaint is a legal document filed by a co-owner of the property when seeking to end co-ownership disputes through the court’s intervention. This complaint details the co-owner’s interest in the jointly owned property, and the desired outcome of ending the co-ownership. No reason is required to be given. The goal is for the court to order the property’s division or sale, ensuring a fair resolution for all parties involved.
An attorney specializing in the nuances of partition statutes will assess the particular situation, streamline the partition process, and achieve the most advantageous outcome. Notably, California’s partition statutes have been updated, first with the Uniform Partition of Heirs Property Act in 2022 and subsequently with the Partition of Real Property Act in 2023. Understanding these new laws is critical for a partition attorney.
After filing the complaint, the attorney ensures that all parties involved are properly served, providing defendants with the legally required notice of the legal action. Hiring a skilled partition attorney may expedite the a partition action to ensure that the summons and complaint are served promptly.
Court Ordered Division or Sale of Property
Most partition actions typically result in a partition by sale or agreed buyout, which requires an attorney to work through the legal proceedings as the court orders the property to be marketed for sale. The court will appoint a partition referee, and the partition referee will hire a Realtor to list the property on the Multiple Listing Service to ensure the property sells at full market value.
Co-ownership Accounting of Offsets
“Every partition action includes a final accounting according to the principles of equity for both charges and credits upon each cotenant’s interest. Credits include expenditures in excess of the co-tenant’s fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages, and other liens, insurance for the common benefit, and protection and preservation of title.”[1]Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035. A partition attorney will diligently advocate for an accounting to recoup costs for improvements, taxes, mortgage payments, and potentially the rental value if one co-owner has retained exclusive possession or collected rents.
Negotiating Alternatives to Partition By Sale
In California, the right to partition is absolute, meaning any co-owner irrespective of their ownership share can pursue a partition action. A “cotenant is entitled to partition as a matter of absolute right; that he need not assign any reason for his demand; that it is sufficient if he demands a severance; and that when grounds for a sale are duly established it may be demanded as of right. To grant it is not a mere matter of grace.”[2]De Roulet v. Mitchel (1945) 70 Cal.App.2d 120, 124.
The partition attorney ensures that your absolute right to partition right is upheld, even against co-owners who wish to stop the sale. The partition attorney can facilitate negotiations where a co-owner in possession might propose to buy out the plaintiff’s interest. A partition lawyer can represent clients in settlement agreements and negotiate a sum equivalent to the value of the co-owner’s interest that is being relinquished. This approach can circumvent the time, expense, and stress of prolonged litigation, and having a partition attorney negotiate on your behalf may yield better outcomes due to their expertise and negotiation skills.
While partition by sale is common, the attorney can also explore other partition forms tailored to the case specifics. For instance, a partition by appraisal involves a buyout based on an agreed-upon appraisal method, and a partition in kind when appropriate.
Overcoming Delays
Perhaps the most fundamental role of a partition attorney is to overcome delays. Notably, defendants are often aware of the outcome of a partition action as resulting in a sale of the property they can’t afford to buy as the sole owner. As such, properly requesting court action in a manner that overcomes delay tactics is critical for a partition attorney. This means knowledge of civil procedure and using tested methods that judges find to be appropriate.
Partition Lawyer as a Career
Attorneys who are serious about helping clients in real estate law can make a career as a partition lawyer. The salaries are competitive with mid-sized law firms as clients expect highly skilled professionals to assist them in ending their co-ownership relationship. Indeed, partition law in California involves some of the most expensive real estate in the country. A background in real estate law, real estate finance, civil procedure, litigation, and real estate transactions can be an asset to the position. Talkov Law’s careers page provides more information on available openings for partition lawyers, law clerks, and other legal professionals.
Talkov Law’s Partition Attorneys Can Help End Co-Ownership Disputes
Experienced partition attorneys achieve results more efficiently and at a lower cost than less experienced firms. With eight full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled over 430 partition actions throughout California. For a free consultation, call (844) 4-TALKOV (825568) or reach out online today.
References
| ↑1 | Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035. |
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| ↑2 | De Roulet v. Mitchel (1945) 70 Cal.App.2d 120, 124. |
