April 24, 2009
/24-7PressRelease/ -- A Primer on Partition Actions in California
Article provided by Law Offices of H. Michael Soroy, please visit us at
http://www.soroy.com
Even given the recent collapse of real estate values in many areas, real property -- a parcel of land, a new home, a condominium unit -- still remains the most expensive asset most people will ever purchase. For many, in fact, the only way to afford a piece of real estate is to share the cost with others, each person taking a joint interest, a partnership interest, an interest in common or (in the case of a husband and wife) a community interest in the property in question.
As long as things go well, joint ownership can work wonderfully. What happens, however, when a partnership dissolves or joint owners disagree on the best use of the property? What happens if the parties agree that it is in everyone's best interest to divide the property and go their separate ways, but they cannot agree on an equitable division?
When a property is jointly owned and a dispute arises about how to divide it, parties can initiate a partition action: a request to the court to divide real property equitably between the interested parties. The partition action may be initiated and maintained by any of the co-owners of a piece of real property.
Codified in the California Code of Civil Procedure under C.C.P. 872.210, a partition action does not create a new title in real property. Instead, it is a way to divide real property between the joint owners. Co-owners automatically have the right to request a partition action, unless they have signed an agreement waiving their right to seek partition for a "reasonable" term. A partition action may be available to terminate the interest of one co-owner (a partial interest) or to terminate the entire ownership thorough physical division or sale.
Spouses -- and, in California, state registered domestic partners -- usually cannot seek partition actions. In these cases, disputes involving the dissolution of property are considered community property issues, and handled as matters of family law. However, if the property in question was purchased by the couple prior to marriage, or if the domestic partnership was registered locally but not with the state, the parties may retain the right to partition.
To initiate a partition action, an attorney for the petitioner files a complaint in the county in which the property is located. Once the complaint is filed, a Notice of Pendency is recorded with the County Recorders Office. This notifies anyone interested in the property that a legal action is in process -- the court only rescinds the notice once the partition is accomplished or the complaint is dropped. Eventually, the case will come before the court, at which time the judge will make a determination on the merits of the partition request. If the request is upheld, the court will appoint a referee to divide or sell the property.
In making a decision on a partition action, the court will usually determine each co-owner's fractional share of the property, for purposes of division. Often, however, the court will also take into account any expenditures made by a co-owner, such as necessary repairs, improvements that enhance the value of the property, capital improvements, property insurance, taxes, and payments of principal and interest on mortgages and other liens. The court may use these expenditures to increase the affected owner's fractional share.
If the land in question is undeveloped, the court can either divide the property by equitable portion to each of the co-owners, or it can order a sale of the property and distribute the proceeds. In partition actions involving developed property, it is more likely that the court will order a sale of the property with proceeds to be divided among the co-owners.
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