What is the Scope of a Partition Action?

The leading treatise on California real estate law, Miller & Starr, explains that: “All conflicting claims existing between the parties and arising out of their relationship as cotenants can be adjudicated in the partition action.” Miller & Starr, 4 Cal. Real Est. (4th ed.) § 11:18. California Jurisprudence provides that: “In a suit for partition, it is a general rule that all equities and conflicting claims existing between the parties and arising out of their relation to the property to be partitioned may be adjusted.” 48 Cal. Jur. 3d Partition § 14.

Both Miller & Starr and California Jurisprudence cite to Demetris v. Demetris (1954) 125 Cal. App. 2d 440, 444, which found that: “In a suit for partition it is a general rule that all equities and conflicting claims existing between the parties and arising out of their relation to the property to be partitioned may be adjusted.” Immediately thereafter, Demetris analyzed the example of such an adjustment where “one cotenant has paid more than his proportion of the purchase price of the land, he is entitled on partition to an accounting therefor.”

This is because: “The primary purpose of a partition suit is … to partition the property, that is, to sever the unity of possession. Partition is a remedy much favored by the law. The original purpose of partition was to permit cotenants to avoid the inconvenience and dissension arising from sharing joint possession of land. An additional reason to favor partition is the policy of facilitating transmission of title, thereby avoiding unreasonable restraints on the use and enjoyment of property.” Cummings v. Dessel (2017) 13 Cal.App.5th 589, 596–597.

California Jurisprudence cites the ordinary adjustments between co-owners as follows:

Because of the equitable nature of a partition action, such an action normally includes an accounting so that the respective rights of the parties can be adjusted and settled. This rule has been codified in the statute permitting the court, in all cases, to order accounting or contribution among the parties according to the principles of equity. The accounting must take into account both charges and credits upon each co-owner’s interest. Credits include expenditures in excess of the co-owner’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… 

A cotenant out of possession can demand an accounting from a cotenant in possession for rents and profits in the division of sales proceeds. Thus, a tenant out of possession may require a cotenant in possession to account for rents and profits, the profits to be considered in the division of the property. Likewise, a tenant who has received an advancement of a part of that tenant’s estate must account for the property received and may have only the proportion of the remainder to which that tenant is equitably entitled. Also, a cotenant who has paid more than that cotenant’s proportion of the purchase price of the land is entitled on partition to an accounting therefor.

A cotenant who has paid a debt or obligation for the benefit of the common property, who has discharged a lien or assessment imposed on it as a common burden, or who has expended money in redeeming the property from sale is entitled to recover from the cotenant, who has received the benefit of the payment, a proportionate share of the amount paid, and the decree of partition may properly provide that the share of the latter will be charged with a lien therefor. If a tenant has a judgment against a cotenant and the judgment is determined to be a lien on the joint property of the cotenants, in determining and settling the rights of the parties in the property on partition, the amount of the judgment must be considered.

48 Cal. Jur. 3d Partition § 15 (citations omitted).

Contact the Experienced Partition Attorneys at Talkov Law Today

If you have questions about the scope of a partition action, including any related claims, the partition attorneys at Talkov Law can help. Our attorneys are dedicated to the area of partition law and have experience handling over 300 or sending us a message today.

About Scott Talkov

Scott Talkov is a partition lawyer in California. He founded Talkov Law Corp. after more than one decade of experience at a California real estate litigation firm, where he served as one of the firm's partners. He has been featured on ABC 7, CNN, KCBS, and KCAL-9, and in the Los Angeles Times, the Orange County Register, the San Diego Union-Tribune, the Press-Enterprise, and in Los Angeles Lawyer Magazine. Scott has been named a Super Lawyers Rising Star for 9 consecutive years. He can be reached about new matters at info@talkovlaw.com or (844) 4-TALKOV (825568). He can also be contacted directly at scott@talkovlaw.com.

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