What is a Partition Action?
In California a party has an unconditional right to partition the property unless there is a written agreement waiving the right. A partition action is a civil lawsuit filed by one owner against another asking the court to partition the property in one of three ways: (1) a partition by sale, (2) a partition in kind, or, if agreed to by the parties, (3) a partition by appraisal. The owner can also ask the court to order the other owner to reimburse them for their attorney’s fees and costs, as well as their portion of any mortgage payments or expenses incurred in maintaining the property.
Partition by Sale
A partition by sale of the property is the most common type of partition and involves the court ordering the property to be sold, usually in the open market, for fair market value. After the sale each owner receives their portion of the sale proceeds. If an owner believes that they are owed money from the other owner for mortgage payments, repairs, upgrades etc., the owner can request that the court order that amount to be paid to the owner from the other owner's portion of the sale proceeds. If one of the owners resides in the property as their primary residence, it is important that they respond properly to a demand for partition by sale as they may have additional rights available to them.
Partition in Kind (Partition by Division)
Unlike a partition by sale, a partition in kind does not result in a sale of the property, it results in the property being divided between the owners based on their ownership percentage. This form of partition requires that the property is not only capable of being divided legally in accordance with the California Map Act and other laws, but also that the property can be divided in accordance with the ownership percentages. This method is more common for large parcels of land that can be subdivided.
Partition by Appraisal
A partition by appraisal is one of the most common ways of resolving a partition action through an agreement between the parties. In a Partition by appraisal, the parties generally agree that one of the owners will purchase the other owner's ownership interest in the property based on the appraisal value of the property. Often the agreement involves the parties agreeing on a neutral appraiser to conduct the appraisal. The actual terms and conditions of the agreement differ from case to case based on the parties, the property itself, and the circumstances.
Who Would Need a Partition Action?
People find themselves owning real property with other people for many reasons. While the most common reason for a joint ownership arrangement we see at Modern Legal PC is two unmarried people who have acquired a property while in a romantic relationship, we also see people purchase properties together as a business investment or find themselves as joint owners of a property after the death of a parent or loved one. While a break down in the relationship between the owners can occur for many reasons, it can often be traced back to the end of the romantic relationship, disagreements over how the property should be used, who gets to use the property when, who will pay which expenses, one of the owners refusing to contribute money to the payment of mortgage payments or expenses, or one the owners excluding the other owner from using the property.
When a breakdown occurs, one of the owners often wants to be removed from the property, to sell the property, to no longer be on title to the property, or to otherwise no longer be liable for the property. Often, the owner wanting to be removed from the property is owed money by the other owner for mortgage payments, repairs, or maintenance. If the other party refuses to agree to the sale or division of the property, the owner is left with little option but to ask for the court to intervene and order the property to be partitioned. This is where a complaint for partition can be helpful.
Having The Right Team is Everything
Modern Legal PC has handled multiple partition actions with most resolving through mutual settlement and without the need for lengthy litigation. Whether you are the owner who wants to sell the property, or the owner who is facing a request to sell a property, the knowledgeable attorney and staff at Modern Legal PC can assist you. Call for a consultation today.
Legal Disclaimer: The information provided on this website is designed to provide useful information and background materials about Modern Legal PC. The information provided is not intended to and does not constitute legal advice and does not create an attorney-client relationship between you and Modern Legal PC. For legal advice, you should consult with an attorney familiar with your circumstances and seek the advice of counsel in the appropriate jurisdiction.
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