Capsule Article on the Law of Partition of Real Estate in California
Partition is the legal process of division between several persons of property that belongs to them as co-owners on title in joint tenancy or tenants in common. The object of partition is to enable each party to obtain the title to and to use in the future, in severalty, of some definite portion of the property owned in common, or to divide the proceeds of the property after sale. When a division is completed, there is an individual ownership interest in the property for each owner. Under California law, partition is the procedure for segregating and terminating common interests in the same parcel of property. The process encompasses division of interests by judicial action or by voluntary agreement of the parties.
A contract or deed between the parties can effect the rights of partition, and may constitute a “voluntary partition," as opposed to one that is imposed by a Court, known as a “judicial partition."
In a “judicial partition" action, the Superior Court in the County where the real property is situated has jurisdiction by statute (Cal. Code of Civil Procedure Section 872.010, et. seq.) and by equity jurisprudence and case law to try and adjudicate the respective interests and positions of all parties, and in general all equities and conflicting claims existing between the parties and arising out of their relation to the property to be partitioned may be adjusted. A Lis Pendens must be recorded as per the requirement of Cal. C.C.P. Section 872.250. The Court may order an accounting, contribution, allowance or other monetary adjustment among the parties based on the principles of equity. The Court may also order injunctive relief, and may appoint a referee to help decide the partition action. See Cal. C.C.P. Section 872.630, 873.010, 873.110 et. seq., 873.150, 873.160.
This article is a very general overview of the subject of the law of partition in California, and is not considered a complete discussion of all of the issues, laws, regulations, and factual circumstances, and should not be relied upon a formal legal advise.
In reality, many partition lawsuits, like other lawsuits, are settled after the case is filed prior to trial. Cases often settle in mediation. Because of the intricacies of the court process, you should retain experienced counsel to represent you in the partition action.