You Need An Experienced Family Law Attorney
- E-Mail Us
Partition Of Real Property
- General Concepts
Partition does not create a new title in real property, but
divides up the existing interests of the owners.
Partition is usually accomplished by a court action but it
may also be made by the parties without court action.
When a parcel of real property is jointly owned by two or more
parties and the request of one of the owners to divide the interests
of the parties is opposed, the party desiring the division of
interests may do so by bringing an action for "Partition"
in Superior Court against the other owners.
Partition is ordinarily available as a matter of right, but
the right may be waived.
Types Of Joint Interests
In Real Property Subject To Partition
"The ownership of property by several persons is either:
1. Of joint interests; 2. Of partnership interests; 3. Of interests
in common; 4. Of community interest of husband and wife."
Joint Interest (Joint Tenancy): "A joint
interest is one owned by two or more persons in equal shares,
by a title created by a single will or transfer." (C.C.
The distinguishing feature of joint tenancy is the right of
survivorship. The title of each tenant extends to the whole
estate. Hence, upon the death of one tenant, the entire estate
survives to the others, to the exclusion of the heirs of the
Tenancy In Common: A tenancy in common, which
is a cotenancy without the right of survivorship, exists where
several persons own property not as joint tenants or partners.
(C.C. 685.) And an interest created in favor of several persons,
not acquired in partnership for partnership purposes, or as
community property, nor expressly declared to be in joint tenancy,
is presumed to be a tenancy in common. (C.C. 686.)
Rights, Duties, And Obligations
Of Cotenants Prior To Partition
Possession And Use: Each cotenant is equally
entitled to share in the possession of the entire property,
and neither can exclude the other from any part of it. One who
is ousted by another may, after demand for entry and refusal,
recover possession and damages, the damages ordinarily consisting
of his share of the value of the use and occupation from the
time of the ouster.
Insurance: There is no obligation on the part
of a cotenant to insure the other cotenant against loss of the
latter's interest. And, since a fire insurance policy does not
insure the property but indemnifies the particular insured for
damage to his interest, a noninsuring cotenant is not entitled
to any part of the proceeds paid to the insuring cotenant.
Protection Against 3rd Parties: One cotenant
can bring or defend an action against third persons for enforcement
or protection of rights in the property.
Contribution: One who pays taxes, interest
or other charges against the property is entitled to contribution
from the other.
Compensation: In the absence of an agreement,
a cotenant, like a partner, is ordinarily not entitled to compensation
for services rendered in care and management of the property,
e.g., leasing it, collecting rentals, supervising repairs, or
making minor repairs. However, he may become entitled to compensation
by implied contract where he makes repairs or improvements,
or furnishes other services or materials, with the acquiescence
of the other cotenants.
Accounting For Rents And Profits: Where the
tenant in possession leases the property to a third person,
other tenants may bring suit to require him to account for rents
collected from such third person. However, if one tenant in
common or joint tenant is in sole possession of the property,
the other tenant cannot recover rent for his occupancy, or profits
derived from the property by the occupant's own labor, nor can
he have an accounting thereof.
Agreements And Transfers: One joint tenant
or tenant in common cannot ordinarily bind the other by an agreement
relating to the property.
Leases To Third Parties: One joint tenant
may give a lease of part of the property, even against the other's
objection, provided that the other's rights are not prejudiced;
i.e., the other joint owner cannot obtain cancellation of the
instrument, but is entitled to share possession with the lessee.
Easements And Licenses: One cotenant cannot
give an easement good against the others. It has been held,
however, that a cotenant can give a license to another to enter
on the land, and this license may, under proper circumstances
and where there is no objection by the other tenant, become
Homestead: Any dwelling in which the owner
or his spouse resides may, to the extent of his or their interest
(with minor exceptions), be declared a homestead. (C.C.P. 704.910,
Termination Of Contenancy
Without Legal Action
Death Of A Cotenant: Since the basic characteristic
of joint tenancy is the right of survivorship, death of one
joint tenant terminates the tenancy.
Transfer Of Joint Tenancy Interest To Other Joint Tenant: A joint tenancy is terminated where one of two such tenants
transfers his interest to the other.
Contract Eliminating Right Of Survivorship: Joint
tenants may, by a simple contract without any conveyance, agree
to eliminate the right of survivorship; the effect will be to
terminate the joint tenancy and create a tenancy in common.
Conveyance Of Joint Tenancy Interest To Third Party
Party: A conveyance of his interest by one joint tenant
to a third party destroys the unity of title and makes the grantee
a tenant in common with the other joint tenant.
Civil Code Section 683.2(a): Under C.C. 683.2(a)
a joint tenant may, without the joinder or consent of other
joint tenants, sever his interest in a joint tenancy in real
property by any of the following means:
- Execution and delivery of a deed conveying legal title
to the joint tenant's interest to a third person (whether
or not pursuant to an agreement requiring the third person
to reconvey legal title to the joint tenant).
- Execution of a written instrument evidencing the intent
to [*pg.482] sever the joint tenancy (including a deed that
names the joint tenant as transferee).
- Execution of a written declaration that the joint tenancy
is severed as to the joint tenant's interest.
The means of severance provided by C.C. 683.2(a) are in addition
to any other methods by which a joint tenancy may be severed.
C.C. 683.2(c) states that severance of a joint tenancy of record
by deed, written declaration, or other written instrument pursuant
to C.C. 683.2(a) does not terminate the right of survivorship
of the other joint tenants in the severing joint tenant's interest
unless one of the following requirements is satisfied:
- Recordation before death of severing joint tenant: The
instrument effecting the severance is recorded in the county
where the real property is located before the death of the
severing joint tenant.
- Recordation after death of severing joint tenant: The
instrument effecting the severance was executed and acknowledged
before a notary by the severing joint tenant not earlier
than 3 days before the death of the severing joint tenant,
and is recorded in the county where the real property is
located not later than 7 days after the death of the severing
Court Action To Partition
Parties: If real property is owned concurrently
or in successive estates, any owner of an estate of inheritance
or an estate for life or for years may sue to partition. (C.C.P.
872.210(a)(2).) This provision includes remaindermen but excludes
lienholders as potential plaintiffs. Any coowner of personal
property may bring a partition action (C.C.P. 872.210(a)(1)),
including owners of successive estates (C.C.P. 872.020, 872.710(c)).
Actions by spouses or putative spouses for division of community,
quasi-community, or quasi-marital property are expressly excluded
from the revised law. (C.C.P. 872.210(b).)
Persons having or claiming interests "in the estate as
to which partition is sought" must be joined as defendants
if the interest is of record or is actually known to the plaintiff.
(C.C.P. 872.510.) "Interests" includes liens, and
joinder of additional parties may be necessary under C.C.P.
389. However, holders of interests in oil or gas leases or similar
pooling arrangements may be omitted as parties and thus left
unaffected by the judgment. (C.C.P. 872.540.)
If partition of all interests is sought, the plaintiff may
join "all persons unknown claiming any interest in the
property." (C.C.P. 872.550.) Such joinder is required if
the name of a defendant is unknown to the plaintiff. (C.C.P.
872.520(a).) If the nature of a defendant's interest is uncertain
or contingent, the complaint must so state and must further
allege the name, address and legal disability of the owner of
any contingent interest insofar as known to the plaintiff. (C.C.P.
872.520(b).) The court must order joinder of additional parties
and appoint guardians ad litem as required by C.C.P. 372 et
seq. (C.C.P. 872.520(c))
If a person who should be joined is known to be dead, the plaintiff
must join the decedent's known personal representative as a
defendant. (C.C.P. 872.530(a).) If none is known, defendant
must so state in an affidavit and join the decedent's testate
and intestate successors and all persons claiming by, through,
or under the decedent. (C.C.P. 872.530(b)(1)(2).)
The Complaint: C.C.P. 872.230 specifies the
necessary allegations of the complaint:
- A description of the property. Both the legal description
and the street address or common designation must be given
for real property. For tangible personalty, its usual location
must be stated. (See C.C.P. 872.240, permitting partition
of real and personal property in one action.)
- The plaintiff's interests as owner and lienholder.
- All interests of record or known to the plaintiff that
the plaintiff reasonably believes will be affected by the
action. Interests of record in personal property include
security interests filed under the Commercial Code.
- The estate to be partitioned and a prayer for partition.
- If a sale of the property is sought, facts justifying
The complaint must also state the existence and location of
any title report procured by the plaintiff (C.C.P. 872.220(a))
and the court may order procurement of a title report by any
party (C.C.P. 872.220(b)).
Lis Pendens: Notice of the pendency of an
action to partition real property must be recorded by the plaintiff
in all counties in which the property is located (C.C.P. 872.250(a)),
and a supplemental notice must be recorded for all additional
property added to the action (C.C.P. 872.250(b)). If the notice
is not recorded, the court must order recordation and stay the
action until this is done. (C.C.P. 872.250(c))
Answer: The answer must set forth the interests
that the defendant claims in the property, including any liens.
(C.C.P. 872.410(a)) Liens must be described by date, character,
and amount due. (C.C.P. 872.420.) Additional expenses related
to the lien may be alleged, but it is no longer necessary to
disclose additional security. The answer must state facts tending
to controvert the allegations of the complaint not admitted
by the defendant. (C.C.P. 872.410(b).) It may also set forth
the defendant's affirmative claims for contribution or other
compensatory adjustment. (C.C.P. 872.430) If the defendant seeks
a sale, the answer must justify it by allegations of fact. (C.C.P.
Trial: Any interest of a party in the property
may be put in issue, tried, and determined. (C.C.P. 872.610.)
In addition, the court must resolve any other issue necessary
to ascertain the state of the title for the purpose of granting
relief. (C.C.P. 872.620.) The court must make any necessary
determination of the status and priority of liens on the property.
(C.C.P. 872.630(a).) A referee may be appointed to take evidence
on the issue, ascertain the facts, and report to the court.
Determination By The Court
Of Right To Partition
The right to partition depends on the plaintiff's owning a
sufficient interest in the property (C.C.P. 872.210) and on
the existence of any prerequisites to partition of the particular
type of property interests involved.
Partition of concurrent interests is a matter of right unless
barred by waiver. (C.C.P. 872.710(b).) Partition of successive
estates is allowed only if in the best interest of all parties.
In deciding this issue, the court must consider such factors
as burdensome expenses, changes in circumstances since creation
of the estates, the intent of the creator, and the needs and
interests of the successive owners. (C.C.P. 872.710(c).)
Partition of partnership property may be permitted if rights
of unsecured partnership creditors will not be prejudiced; alternatively,
the partition procedure may be applied in a partnership accounting
and dissolution proceeding. (C.C.P. 872.730.)
Determination By The Court
Of The Manner Of Partition
Partition is by physical division unless the parties agree
on a sale or the court determines that partition by sale would
be "more equitable." (C.C.P. 872.810, 872.820.).
The court may order part of the property partitioned by sale
and the remainder by physical division. (C.C.P. 872.830.)
The court may appoint a referee to assist its determination
whether to order a physical division or a sale. (C.C.P. 872.820(b).)
Partition of property subject to an express trust may be by
sale simply in the court's discretion. (C.C.P. 872.840(a).)
If the court finds that the plaintiff is entitled to partition,
it makes an interlocutory judgment determining the interests
of the parties and ordering partition. The judgment may, but
need not, determine the manner of partition. (C.C.P. 872.720(a).)
If it is "impracticable or highly inconvenient" to
determine the interests of all the parties in a single interlocutory
judgment, the court may render an interlocutory judgment on
the interests of the original concurrent or successive owners
"as if such persons were the sole parties in interest and
the only parties to the action." Thereafter, the court
may separately adjudge the issues between those owners and persons
claiming under them. (C.C.P. 872.720(b).)
The court must appoint a referee to divide or sell the property.
(C.C.P. 873.010(a).) If both division and sale are ordered,
separate referees may be appointed for each function or the
same referee for both. (C.C.P. 873.020.) With the parties' consent,
the court may appoint three referees in place of a single referee.
The court must appoint any person to whom all parties consent
(C.C.P. 873.040(a)), and a conservator or guardian may give
such consent (C.C.P. 873.040(b)).
C.C.P. 873.010(b) lists some, but not all, of the court's powers
concerning referees as follows:
- Require a referee's bond and fix its amount.
- Instruct the referee. (See C.C.P. 873.070)
- Fix the referee's compensation and provide for expenses.
(See C.C.P. 874.010)
- Establish the commencement of the referee's lien for
fee and expenses.
- Require and settle the referee's interim and final accounts,
and discharge the referee.
- Remove the referee.
- Appoint a new referee.
The referee may perform any acts necessary to exercise his
authority. (C.C.P. 873.060.) He or any party may, on noticed
motion, petition the court for instructions concerning his duties.
Rules For Division Of
Physical Division: In a physical division,
the referee must "divide the property and allot the several
portions to the parties, quality and quantity relatively considered,
according to their interests in the property as determined in
the interlocutory judgment." (C.C.P. 873.210.)
The following rules must be applied to the division insofar
as possible without material injury to the parties' rights:
- Improvements made by a party or the party's predecessor
should be allotted to that party. The value of these improvements
is excluded in calculating the division and allotment. (C.C.P.
- If a party's deed, executed before the partition action,
purported to convey part of the property to a purchaser,
that part should be allotted to the purchaser in accordance
with the deed. (C.C.P. 873.230)
- If the property includes distinct lots or parcels, they
should be left intact. (C.C.P. 873.240.) To facilitate division
by lots, the parties may join additional property by complaint
A lien on a party's undivided interest becomes a lien on that
party's allotted share. (C.C.P. 873.260.)
If the division is necessarily unequal, "owelty",
i.e., compensation to correct the inequality, may be required
from one party to another. (C.C.P. 873.250(a).)
The referee must file a report, giving notice to each party
who has appeared. (C.C.P. 873.280(a).) The report must:
- State how the referee has executed his trust. (C.C.P.
- Describe the property divided and each allotted share.
(C.C.P. 873.280(b)(2).) The description must be complete
- State any recommendations on owelty. (C.C.P. 873.280(b)(2).)
- State any recommendations on opening or closing roads.
On motion of any party, with notice to parties who have appeared,
the court may either (1) confirm the report as filed or as modified
and enter judgment accordingly, or (2) set aside the report,
order a new report, and, if necessary, appoint a new referee.
Sale And Division Of Proceeds Among The Owners: Property to be partitioned by sale is sold by the referee appointed
for that purpose (C.C.P. 873.510), either at public auction
or by private sale, as determined by the court. For assistance
in this determination, the court may order a report from the
referee. (C.C.P. 873.520.) Alternatively, part of the property
may be sold at public auction and part at private sale. (C.C.P.
The court must order sale by any methods and terms expressly
agreed to by all parties to the action. (C.C.P. 873.600.) This
includes parties who have either appeared or been served. The
consent of unknown owners can be given only by a guardian ad
litem appointed for them.
If the parties do not agree, the court may prescribe any manner,
terms, and conditions of sale not inconsistent with the partition
statute. (C.C.P. 873.610(a).) Before doing so, the court may
ask the referee for a recommendation which, however, can be
approved only on noticed motion. (C.C.P. 873.610(b).)
The court may direct a sale on credit, prescribing the credit
terms, the security, and the relationship of the security to
the parties' interests. (C.C.P. 873.630.)
Notice of any sale must be given as required for the sale of
like property on execution, and must include notice to the parties
who have appeared and the persons who have asked the referee
in writing for special notice. (C.C.P. 873.640(a)) However,
notice of a combined sale of real and personal property need
only fulfill the requirements for real property sales. (C.C.P.
873.640(b).) The court may order additional notice (C.C.P. 873.640(c)),
such as a display or classified advertisement. The notice of
sale must include a description of the property and of the time
and place of sale, and must state either the principal terms
of sale or an available means of ascertaining the terms from
documents. (C.C.P. 873.650(a).) A notice of private sale must
state a place for receiving bids (normally the referee's office)
and the earliest date of sale. (C.C.P. 873.650(b))
Unless the court orders otherwise, a sale at public auction
must be held in the county where the action is pending, and
any subject personal property must be present at the sale. (C.C.P.
873.670(a)(b).) The referee may publicly declare a postponement.
(C.C.P. 873.670(c).) These provisions generally follow execution
A private sale can be made no earlier than the date stated
in the notice and within one year thereafter. (C.C.P. 873.680(a).)
Bids must be in writing and delivered after the first publication
or posting of notice. (C.C.P. 873.680(b).)
The property may not be sold directly or indirectly to the
referee, a party's attorney, or a party's guardian or conservator
(acting other than for his ward or conservatee). (C.C.P. 873.690(a))
The referee must make a report to the court which includes
a description of the property sold, the purchaser's name, the
price, the terms and conditions of sale, any security taken,
any amounts payable to lienholders, arrangements for agents'
commissions, and recommendations for opening or closing roads.
purchaser, the referee, or any party may move to confirm or
to set aside the sale, giving at least 10 days' notice to all
parties and to the purchaser (if not the moving party). (C.C.P.
873.720.) At the hearing, the sale may be vacated if the court
makes any of the following findings listed in C.C.P. 873.730(c):
C.C.P. 873.820 requires that the proceeds of sale be applied
in the following order:
- Expenses of sale.
- Other costs of partition, including a reserve for costs
- Liens in order of priority. This includes liens held
by nonparties as well as parties, but excludes liens that
remain on the property under the terms of sale.
- Distribution of the parties' shares of the residue.
The proceeds of the sale must be allocated according to the
interests determined in the interlocutory judgment (supra, §297).
(C.C.P. 872.820.) Proceeds from the sale of trust property are
turned over to the trustee. (C.C.P. 872.840(b).)
Agreement For Appraisal And Buy-Out: An alternative
to a division or sale of the property is an agreed partition
by appraisal, under which one or more parties acquires the interests
of the others at their appraised value
The parties must make a written agreement, filed with the court,
describing the property and naming the parties, their interests,
the acquiring parties, the date for appraisal, and the persons
acceptable as referees. The agreement may also set out various
terms of purchase and may condition the partition upon the appraisal's
not exceeding a stated figure. (C.C.P. 873.920.) Contingent
interests may participate in the agreement through a guardian
The court appoints one or more referees, as provided in the
agreement, to appraise the property and report to the court.
(C.C.P. 873.940.) Confirmation of the report requires a motion
of the referee or a party on 10 days' notice. (C.C.P. 873.950.)