How Does a Real Estate Partition Action Work?
In this article, the expert Real Estate Attorneys of Brown & Charbonneau, LLP answer the question: How Does a Real Estate Partition Action Work?
When two or more persons co-own an undivided interest in property, dividing the property may require what is called a
$“partition action.” The purpose of a partition action is to allow co-owners to obtain title individually to some definite portion of the property which they own jointly.
Who Can Bring a Partition Action?
California Code of Civil Procedure section 872.210 allows partition actions to be brought by (1) a co-owner of property; or (2) an owner of an estate in real property when the real property is owned by several persons. If an individual has a right to property specified in section 872.210, they may bring a partition action even if they do not have a right to actual or immediate possession of the property. Individuals who have an interest in property not listed in section 872.210 generally cannot bring a partition action.
The Right to Partition
An co-owner of property does not need a reason to institute partition proceedings. Persons have a right to institute partition proceedings if they have an interest in the property at issue sufficient to maintain the action, i.e. they must have clear title. This determination is made by the Court in either a contested or uncontested trial.
There are several limitations to partition actions. First, Code of Civil Procedure section 872.710 provides that a party may waive their right to partition. This could be accomplished through a valid contract as well as other methods.
Next, there are limits on the right to partition partnership property. Generally, partition of property owned by a partnership is not guaranteed as a right where the rights of unsecured creditors of the partnership will be prejudiced.
Also, where a party’s right to partition arises out of a successive estate in the property, additional limitations may be imposed. Where partition as to successive estate is concerned, partition will only be allowed if it is in the best interest of all the parties. Factors Courts consider in making such a determination include the following:
- Taxes or other charges;
- Expense of repairs;
- The character of the property;
- Circumstances under which the estates were created;
- Other factors the court deems appropriate.
Costs Recoverable in a Partition Action
Code of Civil Procedure section 874.010 lists various costs that can be recovered by parties in a partition action. Those costs include:
- Reasonable attorney’s fees paid for the common benefit;
- Referee costs;
- Compensation for a surveyor or others employed by the referee in the action;
- Costs for a title report; and
- Other costs expended for the common benefit.
Getting Legal Help
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Contact us or call today at 714-505-3000 to schedule a consultation and learn more about how we can help you.
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