Where land is owned by more than one person, disagreements can arise about its disposition. When a disagreement cannot be resolved, the courts have authority to partition the land or other property.
California’s partition statutes govern actions for partition of property. The partition statutes do not apply to property division under the Family Law Act or in other types of cases specifically governed by other statutes.
What Court Would Hear My Case?
Generally, a partition action must be heard by the court:
- Where the real property is located
- Where the subject of the action is personal property, the county in which the personal property is located at the commencement of the action or where the defendants live.
Defending a Partition Action: The Statute of Limitations:
The statute of limitations never bars relief between tenants in common in an action for partition. It is only in rare circumstances that the statute of limitations has any effect on a partition action.
Laches As a Defense:
If a plaintiff unreasonably delays bringing his or her lawsuit, the court may find that the claim is too stale and dismiss the case.
Partition is an “equitable” action – What Does That Mean?
“Equity” or fairness is the court’s object and rules in equitable cases are often different than in cases involving issues of money damages. So, the courts in partition actions dispense relief with a view to protect both property owners.
Temporary Restraining Orders and Injunctions:
The court may issue temporary restraining orders and injunctions, with or without a bond, (1) to prevent waste; (2) to protect the property; and (3) to restrain unlawful interference with a partition of the property ordered by the court.
Appointment of Receiver:
In some cases, the court may appoint a receiver. Receivers take control of property during a dispute but receivers are costly and their cost is paid by the parties to the case.
Compensation Among Parties:
The court may order an equitable adjustment to offset the use value of property against the expense of improvements. The court may order compensatory adjustment for such items as improvements.
Who Can Bring a Partition Action:
A partition action may be commenced and maintained by an owner of an interest in the property, even if ownership is held by a partnership.
In order to order partition, the court must find that the plaintiff has an interest in the property sufficient to maintain the action. The reasons for seeking partition are not relevant to this order.
Sufficiency of Interests – Concurrent Interests:
In most cases, owners have a right to partition unless they have waived the right to partition. The right to partition concurrent interests, however, is not absolute. Partition of partnership property is one situation where partition of concurrent interests is not a matter of right. There is no absolute right to partition co-tenancy property on which a homestead has been declared.
Determination of Manner of Partition – Division of Property:
The law prefers partition by division in kind, i.e., by dividing the land and granting a portion to each party. The law favors partition in kind because it does not disturb the existing form of inheritance or compel a person to sell his or her property against his or her will.
In appropriate cases, the court will order that the property be sold and the proceeds be divided among the parties.
The court may order that a portion of the property be sold and the remainder divided if, in making the determination whether sale would be fairer than division of the property, the court finds that sale and division of proceeds for that part of the property would be more fair than division of the whole property.
This is, by no means, an exhaustive discussion of partition. This discussion is intended to give the reader an idea of the complexities involved in seeking to partition property.
The process is time consuming and expensive. For example, the parties must each pay their own attorney’s fees. The parties also must pay for the services of referees, appraisers, real estate agents and brokers and anyone else related to the partition of the property. Therefore, the value of the property involved must be sufficient to justify such expense.
Disclaimer: The foregoing is not intended as legal advice. The facts and circumstances of any case requires the review of an attorney familiar with real estate and/or construction law. Before taking any action, please consult with your counsel.
