A partition action allows a co-owner of a property to force a sale of the property, so they can take their share of the proceeds. However, in some cases, the other co-owners may not want to sell the property. While it’s very difficult, legally, to stop a partition action there are alternatives.
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 sell their share to get the proceeds. 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. And when sold, each of the children receive their fair share.
However, what if one of the children wants to keep the family home? Well, they can negotiate to purchase the other children’s shares. However, if the home’s value cannot be agreed upon, then frequently the co-owner who wishes to sell will file a partition action, forcing the home’s sale.
In most cases, a partition action cannot be stopped. However, there may be legal defenses that can prevent or slow a forced sale:
If the property was purchased by co-owners, a contract may exist that indicates a partition action cannot be filed, that it cannot be filed within a certain timeframe, or that mediation or arbitration are required as opposed to court litigation.
And there are other tools that can help secure a more favorable outcome.
A trust litigation attorney can help negotiate a sale of one co-owner’s share to another co-owner. If a settlement cannot be negotiated, then settlement through a mandatory settlement conference or mediation is the likely next step.
A trust litigation attorney can help ensure the property is sold for the most money possible.
Sometimes clients don’t want to own an inherited property with their other family members and think first only of selling their interest to get out, but often it is possible to buy out your family members and retain the property, even if only for as long as you need to rehabilitate the property before resale.
Depending on when the property was purchased, a spouse may or may not have the right to file for a partition action. If you are involved in a dissolution proceeding, we can work with your divorce attorney to determine what your rights you may have and what limitations may exist as to what you may be able to do, or not do, with your property.
You can hire a trust litigation attorney to litigate a partition action. Your attorney may fight to increase the value of your share of the property if, for example, you paid for maintenance, repairs, improvements, property taxes, mortgage payments, etc. However, the reality is that the property likely will need to be sold, and when this happens, instead of everyone receiving their relative share of the proceeds, you’ll get what’s left after the real estate agent, costs, and attorney’s fees for the party who initiated the partition action are paid off the top.
So, it’s extremely important to be the first to act. If you anticipate a partition action may be needed, contact counsel immediately. If you have questions, call RMO Lawyers anytime. The consultation is always free: (424) 320-9444
California law is very clear regarding partition actions. See California Code of Civil Procedure section 872.210. Keep in mind that the laws regarding partition actions are designed to protect co-owners of real estate property, allowing them to divest themselves of the property whenever they choose, and recoup a fair market value for their share.
There are a number of public policy reasons for this, one of the most significant of which is to ensure property is made productive and maintained. Property that is embroiled in strife and uncooperative co-owners generally is unproductive and falls into disrepair because the parties can’t agree on what should be done.
You should consider a trust litigation attorney to examine whether a partition action is needed any time you feel that you cannot co-manage a property with a fellow owner. Often just initiating a partition action can force the uncooperative owner to the negotiation table where a deal can be agreed upon, ending the litigation, the legal spend, and getting you a result.
We recommend finding an experienced trust litigation attorney familiar with the county probate court in the county of the real estate property. For example, if the property is in in Los Angeles, we recommend working with a trust litigation attorney 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.
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