What is a partition action? The definition.
The definition of a partition action (see California Code of Civil Procedure Section 872.210) is an action taken to divide a California real estate property fairly among its co-owners.
When do I need a partition action?
In California, most people consider a partition action when they want to sell their interest in a property, but the other shared owners do not want to sell and don’t want to pay a fair price. This is typical of siblings who have inherited a real estate property from deceased parents.
How to File a Partition Action
A partition action is filed through the courts, via a Petition for Partition Action. Any partial owner of the property has the right to file for a partition action. Typically, the partial owner will work with an experienced probate lawyer to petition and file the action.
Partition Action vs Mediation
We recommend exploring mediation either prior to or in conjunction with filing a partition action. Often, other partial owners will reconsider their position after discussing options and learning the pros, cons and significant costs of a partition action. For example, a partition action is handled through the courts, which results in court costs and attorney’s fees, as well as and delays, allow which might be avoided through an early mediation. What that means is that in almost all cases the amount of money available for all owners after a partition action will be less than the full value of the real estate property in question. Mediation can help mitigate these costs, likely leaving all parties with more than less.
What are the pros and cons of a partition action
There are upsides and downsides to a partition action. The primary upside is that a partition action breaks a stalemate between disagreeable owners. The primary downside is the cost.
- The best option when co-owners cannot agree to property sales terms through mediation
- Some chance of reimbursed costs associated through renovations
- Potential ability to recoup attorney’s fees and costs
- Court costs and legal fees
- Frequently, if a property is sold at a forced sale it will be sold for less money than if it were sold at market.
Cost of Partition Action & Attorney Fees
In California, the cost of partition action and attorneys fees can vary greatly, depending on the complexity of the litigation involved. Attorney’s fees can range from $20,000 to $100,000+ per defendant or plaintiff. It’s for this reason that we highly recommend mediation to avoid litigation and costly court processes.
Partition Action Forms
While partition action forms are available online, we highly recommend speaking with an experienced probate litigation attorney. At RMO Lawyers, we protect people like you every day, and the consultation is always free.
Can a partition action be stopped?
Once filed with the courts, a partition action cannot be “stopped” by a party who does not wish to sell the property unless the parties can resolve the dispute by settling. The county court will typically force a sale of the property, then 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.
How can I avoid a partition action?
The easiest way to avoid a partition action is to not take title to property with another person, and if you are planning on leaving property to your children and you know they do not get along, require the sale of the property and have the proceeds distributed to your children. The key here is to be honest with yourself about those who will receive your property.
Affirmative defenses to a partition action
We have seen several instances of defending a partition action filing, the most significant of which can be adverse possession and statute of limitations defenses. You should consult counsel who can examine what defenses you may have available to you.
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.
How do I choose a partition action attorney?
What does a probate litigation attorney do?
6 reasons I’d choose a probate attorney near me
The Power of Attorney California Guide
About RMO LLP
RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visit https://rmolawyers.com/.