To win a partition action can take anywhere from a couple of months to reach a settlement agreement to a year or more if it goes to a court trial. The vast majority of partition actions settle out of court, which reduces the time frame from filing to resolution, and makes funds and/or property available more quickly to the parties involved. Before filing a partition action, it is important to consider the benefits, potential consequences, and likely practical outcome of your case.
What is a partition action?
The general definition of a partition action (see California Code of Civil Procedure Section 872.210) is a court proceeding where parties ask a court to divide a California real estate property fairly among its co-owners. Commonly, a partition action occurs when a single family home has been left to children in a family trust, and then one of the children wants to keep the home but one child wants to sell but they can’t agree on a price, or both want the home but can’t agree who gets it. It’s each child’s right to sell their share any time they choose. However, because a single family home cannot be “divided” per se, the result of a partition action is that the home is put up for sale on the open market where either can buy it. And when sold, each of the children receive their fair share, but only after substantial legal and real estate costs and attorney’s fees. Of course, the time and expense can all be avoided if they simply come to some sort of agreement.
How does partition work?
A partition starts with a complaint filed with the court to partition the at-issue property. Depending on the nature of the property – e.g. residential, commercial, income-producing, etc. – a partition referee may be appointed by the court to manage the property during the pendency of the court action, meaning none of the owners may be allowed to manage the property until the case is settled or the court issues its ruling. The referee may also be called upon to provide valuations and other information to the court to aid it in making its ruling. The court will ultimately award the property to one owner, who will pay compensation to the other, or the property will be ordered sold. In either case, the party who succeeds on the partition action may be able to recover some or all of the attorney’s fees and costs for having to have brought the case in the first place.
How long does it take to process a partition action?
It generally takes about a year and half to two years to get to trial on a partition action. We’ve done them in less time, but on rare occasions we’ve seen them take longer. It depends on various factors, including how complicated discovery is, whether there are discovery disputes, and the court’s own trial scheduling issues.
But those timelines assume your case even needs to go to trial. The vast majority of cases can be settled without having to go to trial. The swiftness with which you can negotiate a resolution or get your case to mediation often depends on how effective your counsel is. Many lawyers simply start a case and start hard-charging toward trial, a one-way train on a single destination rail. Effective counsel will look for opportunities to help you settle your case favorably sooner and for less legal spend, getting you a better result sooner and for less costs and fees.
How do I win a partition action?
Winning a partition action is relative and depends on your goal — some co-owners of property want to keep the property, but divide it up and manage it equitably. When co-management is not possible, perhaps property can be partitioned, as with large parcels of land, for example. When physically dividing up the property is not practical or feasible — say, in the case of a single-family home — co-owners may wish to sell the property and collect their share of the proceeds. In other cases, one co-owner may want to take full possession of the home and “buy out” the other co-owners. Each case is different, and each result is doable.
Winning or settling a partition action to your satisfaction truly depends on your individual circumstances. But regardless, the aim for all parties involved is to settle the matter as cost-effectively as possible, so that mounting court costs and legal fees don’t chip away at the property’s original value to each owner, and where settlement cannot be achieved, to drive the case to trial sooner to avoid unnecessary delay and cost.
Can a partition deed be challenged?
Usually not, except in rare cases of fraud or duress. Once filed with the courts, a partition action cannot be “challenged” or stopped by a party who does not wish to sell the property, although they will be a party to and a party to the action. Unless the parties can resolve the dispute by settling, the county court typically will force a sale of the property and divide the proceeds between the co-owners. Even if one of the co-owners currently lives in the property, the partition action will typically force the sale of the property. In any instance where a property is ordered sold, the parties will be allowed to bid on the properties like anyone else. For more details, read “How to Stop a Partition Action”
Do I have to go to court to win a partition action?
Yes and no. You will need to file your action in court to initiate a partition action. However, once you’ve filed your partition action you will have opportunities to settle your case without going to trial. An experienced trust litigation attorney can help negotiate a mutually acceptable resolution for all involved, while avoiding the costs, complications, and risks of trial.
Are there different kinds of partition actions?
Yes. There are different kinds of ownership and two different kinds of partition actions. Before you decide what type of partition action you want to pursue, you’ll first need to know what type of co-owner you are.
Chances are you hold jointly-owned property as either a Tenant In Common (TIC), or a Joint Tenant With Rights of Survivorship (JTWROS). This is an important distinction, because TIC property may or may not be taken in equal shares, but JTWROS must always be taken in equal shares. It is worth noting that, in either case, any expenditures necessary to maintain the property — mortgage and interest payments; property taxes; repairs and improvements; utility expenses, etc. — are eligible for reimbursement from one party to another via unequal contributions claims.
As for partition actions, there are three different kinds in California (and most states): partition in kind, partition by sale, and partition by appraisal (or allotment).
Partition in kind is the preferred method of partition under California law, though not the most common. Partition in kind involves physically splitting up the property between parties in an equitable manner, so that each is awarded their fair share of the whole. This is often done in cases involving lots of land. In most cases, though, a partition in kind is simply not a practical possibility. For example, how do three people split up one condominium? Due to the natural absurdity and inconvenience of such a task, partition by sale is most common.
In a partition by sale, the property is appraised and put on the market by an agreed-upon or court-mandated third-party broker or receiver. Upon the sale of the property, the proceeds are distributed to the individual owners according to their relative ownership shares, of course after fees and costs are deducted.
A partition by appraisal occurs when one joint owner wants to take sole ownership of a property and essentially “buy out” the other owners but they can’t agree on the value. In such a case, the “selling” parties will receive financial compensation for their share, which will again be based on an agreed-upon or court-appointed third-party appraiser’s valuation of the property, anda again after fees and costs are attributed.
When should I consider a partition action?
You should consider a partition action if you jointly own property with another person(s), and your desire to sell or use the property conflicts with your co-owner’s.
A common example, as stated above, is siblings who have jointly inherited a family home. One sibling may have a growing family, and wants to move into the home because they need the extra room. Another sibling may have a need for current cash flow to pay off student loans, and wants to sell the home to collect their portion of the proceeds. Perhaps two siblings want to share the home, but want certain portions of it designated as their own. Or one sibling has spent money making improvements to the home, and wants a greater share of proceeds should it be sold. Maybe another wants to renovate the home and turn it into a rental property and split the proceeds, but asks for a greater share due to upgrades they made and their role as landlord.
And in any case at all, there are certain inevitable questions that come along with joint property inheritance — who is responsible for mortgage and interest payments; utilities; taxes; maintenance?
It’s easy to see how such situations can get complicated and contentious even when everyone has the best of intentions. Oftentimes, joint owners simply have conflicting interests through no fault of their own. This is when you should consult a trust litigation attorney to help negotiate a settlement or represent your interests in court.
When should I NOT consider a partition action?
If at all possible, you should try to negotiate a settlement with your co-owners. Only when you’ve exhausted negotiations should you consider a partition action. There is always a chance that proceeding with one can have negative and unforeseen consequences. And under no circumstances should you attempt to file a partition action yourself. These cases are simply too complicated and detail-oriented. You need competent and experienced counsel working for you. .
Separately, please note that partition actions are usually not available to spouses or registered domestic partners in California. Such disputes are handled by a family law court during the division of property..
And generally speaking, property occupants are not eligible to file a partition action — only property owners. In a very limited number of special cases, non-owners may have legal standing under an adverse possession claim. Such claims may be founded upon, for example, a non-owner’s continuous use of a shared private road or driveway, or their development of agricultural land. But again, such cases are rarely grounds for a partition action.
How much does a partition action cost?
In California, the cost of partition action and attorneys fees can vary greatly, depending on the complexity of the property and issues involved and the resistance of your opposing party. Attorney’s fees can range from $20,000 to $100,000+ per party. It’s for this reason that we highly recommend negotiated settlement or mediation to avoid these costly court, attorney and expert costs and fees.
When should I contact a trust litigation attorney?
Contact a partition action lawyer the moment you have exhausted your efforts to amicably negotiate a settlement with your co-owner.
Do I need a partition action lawyer near me?
We recommend finding an experienced partition action attorney familiar with the county probate court in the county where the real estate property is located. For example, if the co-owner lives in Miami, Florida, yet the real estate property is in Los Angeles, California, we recommend working with a probate lawyer in Los Angeles. A Los Angeles probate lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney.
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About RMO Lawyers
RMO LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri and Kansas. Our founder, Scott E. Rahn has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com