It is a bit unusual that the third party who refuses to sell conventionally is threatening a partition action unless the third party is seeking an equitable adjustment. If the three of you ultimately cannot come to an amicable agreement, the legal remedy is a lawsuit for partition and sale. A lawsuit for "partition and sale" is a court procedure by which a judge will order the property sold and the proceeds distributed amongst the co-owners. Usually, the court will enter an interlocutory judgment to sell the property and will appoint a partition referee to list the property for sale and to act as the "seller". Upon granting judgment partitioning by sale of each property, the court will order that the proceeds of the sale pay the encumbrances thereon, and the net proceeds thereof then be divided between the parties in an equitable amount to be determined by the court, in addition to allowance, accounting, contribution, or other compensatory adjustment among the parties according to principles of equity, pursuant to California Code of Civil Procedure section 872.140. In such a partition action, each party will need to present evidence of why the court ought to distribute the proceeds differently than the ownership percentages.
Note that a "partition action" does not necessarily mean the property needs to be sold to a third party. One of the co-owners could end up buying out the co-owner(s) and become the sole owner, or alternatively, the court could reallocate the ownership percentages of each co-owner.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended nor should be construed as legal advice for any particular case or client. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney. This posting is not intended to constitute an advertisement nor a solicitation. Due to the high volume of phone calls and e-mails, not all phone calls or e-mails can be returned.
Since the two of you want to sell and the third person does not want to sell, you two are the ones that would be bringing a partition action. A partition action is lawsuit which is brought forward by property owners that want to sell against property owners that do not want to sell. Its in your best interest to try to amicably resolve the matter so that it will save you time and money. If you are not able to resolve the matter amicably out of court, you will need to bring the partition action to force the sale of the property.
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A partition action is a lawsuit seeking the sale of a property and the distribution of the proceeds to the co-owners. These cases usually settle because the more you fight, the less money everyone makes.
An action partition is a legal action to compel separation of a person(s) legal interests in real property from others. Typically, the Court will order a partition by sale, which is the usual result. The parties will then divide the sales proceeds, after costs of sale and payment of any outstanding liens, etc. Based on my experience, partition be sale is the likely result, despite the seeming preference for division in kind. So, it does not make sense to file an action for partition where the the others owners want to sell in the first place; unless, the goal is division in kind or there other reasons to file a suit, such as apportionment of ownership, lien responsibility, etc. Even so, consult with a lawyer and attempt to resolve by mediated agreement.
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