Who Pays for a Partition Action?

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1. Who is responsible for paying for a partition action in California?

2. Is it worth it to insist the other party pay for your partition attorney’s fees?

Who is responsible for paying for a partition action in California?

As experienced partition attorneys, one of the most common questions we receive is who will pay for legal services related to the partition action. This can include attorney’s fees, filing and court fees, fees associated with fixing up the property in preparation for sale, and more. Many of our clients call initially hoping to have the opposing party cover some or all of these costs. There are a few important factors to consider when evaluating who is responsible for paying for a partition action.

In the United States, each party typically pays for their own attorney’s fees (known as the “American Rule”). However, California partition law allows for an exception to this rule, stating that “the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.” California Code of Civil Procedure 874.040. Indeed, the court may award “reasonable attorney’s fees incurred or paid by a party for the common benefit.” California Code of Civil Procedure 874.010(a).

An experienced partition attorney understands how to keep attorney’s fees, and the overall cost of a partition action, reasonable for all parties involved.

Is it worth it to insist the other party pay for your partition attorney’s fees?

While it may feel unfair to pay for a partition action out of pocket when your co-owner is the one who is in the wrong, it may be a relatively small price to pay in exchange for expediting the partition proceedings. The time, money, and energy it takes to fight over a few thousand dollars (the cost of a typical partition action is usually around $8,000) may very well not be worth the fight. With the median value of a home in California above $750,000, a few thousand dollars in attorney’s fees pales in comparison to the hundreds of thousands of dollars in equity that each co-owner may be entitled to.

Imagine the following scenario: you inherit a home worth $800,000 with your brother. Your parents paid off the home, and, aside from a few cosmetic issues, the house is mostly in good shape. Your brother lives in the home and both refuses to keep the house in good shape and is also being completely unreasonable about selling it. You don’t really want to spend $8,000 on attorney’s fees to get the home sold, but the $400,000 in equity that you are entitled to is extremely tempting. Receiving a net $392,000 (total equity – attorney’s fees) compared to receiving nothing and watching the house fall into further disrepair is undoubtedly worth it to many co-owners.

The value of ending a toxic co-ownership relationship, receiving your equity, and moving on with your life likely outweighs any monetary benefit that may be received by pursuing reimbursements for attorney’s fees. Talkov Law’s partition attorneys can walk you through the pros and cons of pursuing costs associated with the partition action.