When one co-owner of real property wants to sell but the other co-owners do not, a partition action is brought in California. Divide means to partition. According to the law, the competing co-owners have the unalienable right to partition the property and sell their respective portions.
What is a Partition Action?
A lawsuit known as a “partition action” aims to compel the sale of property. In California, anything affixed to real property whether it a structure, a house, or a farm can be divided and sold through co-ownership. When ownership is dissolved or changed, California law specifies a specific Civil Code Procedure that must be followed. The rights to real estate are a part of the land. Easements, rentals, debt, profits, and everything else created by humans, such as fixtures and fences, are all considered to be real property. A buyer buys the property and/or ownership rights. Another name for this is “bundle of rights.” Ownership division can become complicated and challenging.
When you decide to sell or buy real estate with other co-owners, it’s crucial to make sure that each owner completely understands what fraction or stake they actually possess. It’s crucial to specify if the property is used for business or pleasure, or possibly both. What did property serve to accomplish? If one of the owners wishes to divide the property later, specifying the exact intent now (for farmland) will save time and money.
Who Can File for a Partition?
The process for partition is governed by law. Anyone who wants to dissolve ownership that is jointly owned with another person has the legal ability to sell his or her interest if desired, according to California Civil Procedure Code section 872.210. Partitions are eligible for:
Inheritance, which typically involves family members receiving both real estate and personal possessions.
– Divorce/communal assets held by spouses.
– Shared ownership partners with distinct real and personal property ownership values. Owners who divide by concurrent interest have the legal option to sell at any time. It is a complete ownership right. This rule has some exceptions:
- Formally/contractually waived the right to split; or
- Common property possessed by a married couple. This division is possible, but it takes place in family court following a divorce.
How to Avoid A Partition Lawsuit by Understanding the Types of Ownership
– Joint tenancy is when two or more people have an equal right to an undivided interest in a specific piece of real estate to use, enjoy, and possess. Joint tenancy can only be created by the parties’ express written agreement. Joint tenancy is a survivorship right. Meaning that without the necessity for a probate process, the rights and interests of one joint tenant upon death pass to the surviving joint tenant or tenants. Keep in mind that this sort of tenancy was developed with purpose and is obvious to all owners and tenants.
– Tenancy in Common (TIC): A TIC is created when two or more people jointly own an estate in land with no right of survivorship. Their portion of the tenancy in common passes to their heirs.
– Tenancy by Entirety. In a tenancy by entirety, only two people are involved in ownership or tenancy, and they must be wed. Divorce causes division of property.
– Tenancy in severalty is the situation in which the property is owned by just one individual. Apart from the severed interests of others, there is no co-ownership.
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 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.
- Decide on each parties’ putative interest in the property and ordering partition; and
- The type of partition in kind or sale of the property. Partition Action Lawsuit by Interlocutory Judgement (example of case law):
Summer vs. Superior Court of San Francisco.
A San Francisco investment property belonged to three co-owners. One filed for a partition, and the judge gave her permission to sell the property privately after the trial. Two further co-owners (the owners’ interest was not analyzed and will be established in the future) challenged the motion. The appellate court overturned the judgment of the lower court (trial court). What makes this case significant?
- You can save time and money by hiring an attorney to assist you draft a business strategy and form a partnership or other company. The dissolution of a real property partnership or co-ownership might ultimately be made easier with the help of an attorney. The aforementioned litigation was filed in 2016, and it was resolved in 2018.
- Civil Code Procedure 872.720 of California requires that each co-interest owner’s be established before a partition order can be issued (a).
Sanjay Sabarwal focuses his practice in the areas of Employment Law, Family Law and Personal Injury Law and provides outstanding service and expertise for your legal right to win cases with personalized attention and insightful counsel. Mr. Sabarwal has been the Co-Owner and House Counsel for Ziba Beauty, member of the American Bar Association, Los Angeles Bar Association, South Asian Bar Association and Orange County Bar Association. He also serves on the Advisory Board for Youth Business Alliance, which connects entrepreneurs to speak at underserved schools in Los Angeles County. He is also a board member for the Artesia Chamber of Commerce. Contact Sanjay at sanjay@sabarwallaw.com or (562) 250-4471.
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