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
Brown & Charbonneau, LLP represents individuals as well as large and small companies in cases involving all forms of business and real estate disputes. If you are involved in a business dispute, or would like to learn about your rights and how to protect them, we can provide you with the information you need.
Contact us or call today at 714-505-3000 to schedule a consultation and learn more about how we can help you.
Brown & Charbonneau, LLP is a top-rated business litigation, corporate, real estate and family law firm in Irvine, California. We are honored to be named by Best’s Lawyers® as one of the Top Law Firms in the US, including the specialty area of commercial litigation. As an AV-rated law firm, we are proud of our 10.0 Superb Client Rating from Avvo. Our top-reviewed Southern California attorneys have also earned specializations from the State Bar of California, as Certified Trial Specialists, and are included amongst the elite attorneys to be named Super Lawyers®.
- General Business & Corporate
- Business Litigation & Contract Disputes
- Civil Litigation
- Partnership & Shareholder Disputes
- Fraud Claims
- Breach of Fiduciary Duty Claims
- Real Estate & Construction Disputes
- Trade Secrets, Non-Competes & Unfair Competition
- Employment Disputes
- Personal Injury & Elder Abuse Cases
- Trial Specialist
- Family Law
Our website is full of valuable information and resources. Our goal is to provide as much information as possible to assist all our clients in making fully informed decisions. Just click any area of interest.
Brown & Charbonneau, LLP publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our “Contact Us” form, which can be found on our website at www.bc-llp.com. The mailing of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the Firm.