Disclaimer: This is general information only and not legal advice. For advice specific to your situation, consult a California real estate or probate attorney.
Detailed Answer
If you and a family member co-own an inherited parcel in California and that co-owner refuses to list or sell, California law provides a clear remedy: a partition action. A partition action is a lawsuit asking the court to divide or sell real property owned by two or more people. The core rules are in the California Code of Civil Procedure (see California Code of Civil Procedure §§ 872.010 et seq.). For the statute text, see: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=872.010&lawCode=CCP
Who can start a partition action?
Any co-owner of real property can file. That includes heirs who received the property by will, intestacy, or transfer. If the ownership is in a trust, the trustee may have authority to act under the trust document; otherwise beneficiaries who are legal owners may need to bring the action.
What will the court do?
The court examines whether the property can be divided physically (partition in kind) or whether a sale is necessary. If the parcel can be divided fairly without unfairly harming value, the court may order partition in kind. If a physical division would be impractical or would substantially reduce value, the court will order a sale and divide the sale proceeds among the owners according to their ownership shares. The court may appoint a referee to handle the sale and enforce bidding and sale procedures.
Typical process and timeline
- Pleadings: File a complaint for partition in the county Superior Court where the property sits. Summons and service of process must be completed for all co-owners and interested parties (creditors, lienholders, heirs, trust beneficiaries as appropriate).
- Preliminary steps: The court may order appraisals, accounting of liens and encumbrances, and address occupancy and rents while litigation is pending.
- Decision on partition type: If partition in kind is impractical, the court orders sale—often handled by a court-appointed referee.
- Sale: The referee or the court approves the method of sale (public auction or private sale with court confirmation) and distributes proceeds after paying liens, costs, and attorneys’ fees as ordered by the court.
Practical considerations and limits
– Costs and timing: Partition lawsuits involve court fees, attorney fees, appraisal costs, referee fees, and delay. Expect several months; complex cases can take a year or longer.
– Liens and mortgages: Outstanding mortgages and liens will be paid from sale proceeds in order of priority.
– Ownership form matters: If the property is held in joint tenancy, a surviving joint tenant may have different rights than a tenant in common. Most inherited parcels recorded to multiple heirs are tenants in common, which supports a partition action.
– Trusts and probate: If title is vested in a trust or if the property is part of an open probate estate, the trust document or court overseeing the probate may affect your options. Executors or trustees often can act to sell if the instrument grants authority, which can be faster than a partition suit.
Alternatives to litigation
- Negotiate a buyout: Obtain a market appraisal, offer to buy the other owner’s share based on value minus liens and costs.
- Mediation: Use a neutral mediator to reach terms for sale, buyout, or shared management.
- Sell cooperatively: Offer to split listing costs or pay a higher share of commissions to persuade the reluctant co-owner to list with a realtor.
Estimated outcomes
If you file and the court orders sale, you will likely recover your ownership share of net sale proceeds after liens, costs, and court-ordered fees. If the court orders partition in kind, the physical division may leave you with a part that has lower marketability or value. Courts try to be fair, but litigation costs reduce net recovery, so weigh the likely net proceeds against negotiation options.
Helpful Hints
- Start with documents: Gather the deed, trust documents, death certificates, mortgage statements, tax bills, and any correspondence about the property.
- Get a market appraisal: A neutral appraisal helps you and the court understand fair market value for buyout or sale decisions.
- Send a clear written proposal: Offer purchase terms, cash incentives, or a shared listing plan. A reasonable written offer can encourage settlement.
- Consider mediation early: Courts often favor parties who tried alternative dispute resolution before a full trial.
- Consult a California real estate attorney: A lawyer can explain filing a partition complaint, estimate costs, and help identify whether probate or trust issues affect the case.
- Watch for liens and taxes: Record any outstanding debts or tax issues before filing—these affect who gets paid from sale proceeds.
- Plan for costs and timing: Litigation reduces the pot. If the net recovery from sale minus legal and court costs is small, a negotiated buyout may be more economical.
- If the property is in a trust or probate, ask whether the trustee or executor already has authority to sell; that can avoid partition litigation.
Primary legal reference: California Code of Civil Procedure §§ 872.010 et seq. (partition actions): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=872.010&lawCode=CCP
For help finding a qualified attorney in your county, consider contacting your county bar association or the State Bar of California’s lawyer referral service.