In California, a partition action occurs when one co-owner of real property wants to sell but remaining owners do not. Under California law, a cause of action for partition is governed by the requirements of CALIFORNIA LAW CIVIL PROCEDURE CODE SECTION 872.230, which provides, in pertinent part:
The Complaint shall set forth: (a) a description of the property that is the subject of the action…In the case of real property, the description shall include both its legal description and its street address or common designation, if any; (b) all interest the plaintiff has or claims in the property; (c) all interest of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff; (d) the estate as to which partition is sought and a prayer for partition of the interests therein; and (e) where the plaintiff seeks sale of the property, an allegation of the facts justifying such relief in ordinary and concise language.
Furthermore, a joint tenant or a tenant in common is entitled to partition as a matter of absolute right. De Roulet v. Mitchel (1945) 70 Cal. App. 2d 120, 123. The only requirement to an award of partition is that a clear title be shown and in no event is a partition to be denied because it will result in a financial loss to the cotenants. Id. at 124. The interests of the parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the action. CALIFORNIA LAW CIVIL PROCEDURE CODE SECTION 872.610. Additionally, in all partition cases, the court may order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity. CALIFORNIA LAW CIVIL PROCEDURE CODE SECTION 872.140; see also, In re Marriage of Leversee, (1984) 156 Cal. App. 3d 891, 894, 897 (applying CALIFORNIA LAW CIVIL PROCEDURE CODE SECTION 872.140 to property held in joint tenancy); Wallace v. Daley, (1990) 220 Cal. App. 3d 1028, 1031, 1035-36 (applying CALIFORNIA LAW CIVIL PROCEDURE CODE SECTION 872.140 to property held by tenants in common).
Who can file a partition action?
CALIFORNIA LAW CIVIL PROCEDURE CODE SECTION 872.210 states that anyone who wants to dissolve ownership that is jointly owned with another person has a legal right to sell his/her interest if desired. CALIFORNIA LAW CIVIL PROCEDURE CODE SECTION 872.210 broadens the class of individuals who may bring a partition action before a court, while retaining a limitation on property held in community or quasi-community interest.
Some common reasons people file a partition action are:
- Inheritance issues
- Divorce/mutual properties owned by spouses
- Invested ownership partners
Be wary though, it is possible to waive the right to partition in writing or contract. Furthermore, if property is owned by a married couple, then the division takes place after a divorce in family court.
Glendale real estate law firm Rodriguez Lopez, APC, provides legal services throughout all of California, including: Los Angeles, Glendale, Burbank, Santa Clarita, Valencia, Pasadena, and North Hollywood. Rodriguez Lopez, APC, also provides legal services to select cities in Kentucky. Check out our locations to see if we can help you or your business.
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