Partition Actions
A California partition action happens when one co-owner of real property wants to sell but other co-owners do not want to sell their ownership rights. Partition means division. The opposing co-owners have the absolute right by law to divide the property and sell their portion with the legal remedy of “Partition”. Todd Frelinger and his team at Prime Equity Properties Group work closely with receivers, partition referees, and trustees to provide professional representation when disposition of real property is necessary. These properties include commercial, residential, multi-family, industrial, and vacant land.
Partition Referee
When disputes involving co-owners of real property and other assets emerge, solutions are often reached via mediation and other forms of negotiation. However, not every dispute lends itself to an easily reached agreement, which is where partition and partition referees come into play. Partition is a formal division of interests carried out by the courts, one where property and other assets are divided accordingly between all involved parties. A Partition Referee is tasked with carrying out the duties involving this process. The specifics of these duties can vary based on the circumstances at hand, but can includes tasks such as overseeing the sale or auction of a property, appointing a real estate agent/broker, signing deeds and drafting and signing purchase/sale agreements.
What is a Partition Action?
A partition action is a lawsuit that forces the sale of ownership in court. Whether it’s a building, home, or farm, anything attached to real property can be divided and sold by co-ownership in California. California legislation has a written Civil Code Procedure to follow when ownership is dissolved or changed. Real property and its rights go with the land. The real property includes easements, rents and debt or profits and all man-made things like fixtures, and fences. A buyer purchases the real estate and/or rights of ownership. This is also known as “bundle of rights.” The division of ownership can become complex and difficult. It is important to make sure when you decide to dissolve or purchase real property with other co-owners that each owner fully understands what fraction/interest they own. It’s equally important to define what the property is used for profit or pleasure, maybe both. What was the purpose of the property? Defining exact intent will save time and money if one of the owners decides to partition later.
Who Can File for a Partition?
The procedure for partition is stated. The California Law Civil Procedure Code section states anyone who wants to dissolve ownership that is jointly owned with another person has a legal right to sell his/her interest if desired. Eligibility for Partitions are:
- Inheritance that is usually family members who inherit real and personal property.
- Divorce/mutual properties owned by spouses.
- Invested ownership partners with separate values of ownership in real and personal property. Partition by concurrent interest is when owners have the right to sell by law if they choose. It is an absolute right of ownership.
There are exceptions to this rule:
- 1) waived the right to partition in writing/contract or
- 2) community property: owned by a married couple. This division can happen but takes place after a divorce in family court.
Ownership
- Joint Tenancy– Joint tenancy can be created only by the intention of the parties and exist when two or more persons are equally entitled to an undivided interest in a specific piece of real property to use, enjoy, and possess. Joint tenancy is a right of survivorship. Meaning upon the death of one joint tenant’s his/her rights and interest pass to the surviving tenant or tenants without the need of the probate process. Remember this type of tenancies is created by intent and is clear to all owners/tenants.
- Tenancy in Common– Tenancy in common is created by an estate in land is held in land by two or more persons with no right to survivorship. Tenancy in common their share descends to his/her heirs.
- Tenancy by Entirety– Tenancy by entirety are only two persons in ownership/tenancy and are required to be married. Partition occurs as a result of divorce.
- Tenancy in Severalty– Tenancy in severalty is when one person owns the property. There is no co-ownership apart from others interest, severed.
Partition Types
California Partition Procedures Defined by Statute
A partition lawsuit asks the courts to force the division or sale of the property. There are three types of partition:
Partition in Kind
This happens when the parties come together and an agreement is achieved. They decide to divide their ownership rights fairly into separate individual pieces, a fraction of the property.
Partition by Appraisal
The property is appraised and sold. They divide up the proceeds fairly. This would happen with a single-family home being that you can’t split the home in half. If one of the owners wants to buy out the other, it can be done after property is appraised.
Partition by Judgement
Interlocutory judgement leaves decisions to the judge. The judge must determine elements before allowing the property to be partitioned.
1) Decide on each parties’ putative interest in the property and ordering partition; and
2) The type of partition in kind or sale of the property. Partition Action Lawsuit by Interlocutory Judgement (example of case law)