Detailed Answer
Short overview. In California, co-owners of real property who cannot agree on its use or disposition can ask a court to partition the property. The court can divide the land physically (partition in kind) or order a sale and divide the proceeds. The statutes governing partition begin at Code of Civil Procedure § 872.010. For the relevant statutory starting point, see: Cal. Code Civ. Proc. § 872.010. This section explains the remedy of partition and frames the process described below.
1. Who may start a partition action
Any owner of an undivided interest in real property—commonly tenants in common or co-owners—may file a partition complaint in superior court requesting division or sale. Creditors with an interest (for example, a deed of trust or lien) may also participate because their claims affect proceeds from a sale.
2. The complaint and service
The plaintiff files a complaint that describes the property, each owner’s claimed interest, and the relief sought (partition in kind or sale). All parties with a recorded interest must be served with the complaint and given an opportunity to respond. The court’s jurisdiction and the parties served follow normal civil procedure rules.
3. Partition in kind vs. partition by sale
California courts prefer partition in kind—physically dividing the land—when it is practicable and will not cause prejudicial harm. If the property cannot be fairly divided (for example, a single-family home or parcel that cannot be subdivided), the court will order a sale. The court evaluates the nature of the property, the number and size of ownership interests, zoning and subdivision restrictions, and the potential for inequitable results from dividing the parcel.
4. Pretrial procedures, potential buyout, and settlement
Before a physical split or sale, owners often negotiate buyouts: one owner purchases another’s share at an agreed price. Courts encourage settlement and sometimes require mediation. If parties settle, the court typically approves a stipulated division or sale plan.
5. Appointment of a referee or commissioner
If the court orders partition (in kind) or a sale, it commonly appoints a referee or commissioner to handle the practical work: surveying, preparing a report, managing sale logistics, and conducting auctions or private sales under court supervision. The referee reports back to the court, which approves actions such as the sale terms and distribution plan.
6. Notice, appraisal, and sale mechanics
Before sale, the court or referee normally obtains appraisals to set a reserve or inform the court of value. The sale may be a public auction or a private sale subject to court confirmation. Courts set notice requirements so all interested parties and lienholders learn of the sale and have an opportunity to object.
7. Confirmation of sale
After a sale, the referee seeks court confirmation. The court reviews whether notice requirements were met, whether the sale was fair and reasonable, and whether the sale followed the court’s orders. Interested parties can object during the confirmation hearing. If the court confirms the sale, the referee or clerk issues a deed to the purchaser and the sale becomes final.
8. Distribution of proceeds
Once the sale is confirmed and funds are in hand, the court orders distribution. The usual order is:
- Pay sale costs (commissions, advertising, referee fees, escrow and recording fees).
- Pay senior liens and mortgages in priority order (mortgage and tax liens generally have priority over co-owner claims).
- Pay court-ordered costs, including adjudicated attorneys’ fees or liens allowed by law.
- Distribute remaining proceeds among owners according to their respective interests, with adjustments for contributions, advances, or improvements one owner may have paid for the property.
Where parties dispute who paid for improvements or debts, the court may hold an accounting and adjust distributions accordingly.
9. Effect on title and liens
A judicial partition sale typically clears the co-owners’ competing claims to one another; the purchaser receives title through the court-ordered deed. However, valid recorded liens (mortgages, tax liens) survive and must be paid out of the sale proceeds or remain against the property depending on priority and how the sale is structured.
10. Timing and costs
Partition actions can take several months to over a year depending on complexity, appeals, the need for surveys or subdivision approvals, and whether the sale is contested. Expect court fees, referee fees, appraisal fees, advertising and sale costs, and potentially attorney fees. These costs come out of the sale proceeds.
Where to check the law
Partition law appears in the California Code of Civil Procedure; the statutory starting point is CCP § 872.010. The code contains the procedures a court follows for partition, sale, referee appointments, and distribution rules. For specific procedures on sale and referees, review the partition provisions in the CCP through the California Legislative Information site: leginfo.legislature.ca.gov.
Helpful Hints
- Gather documents early: deeds, title report, mortgage statements, tax bills, HOA records, and any written agreements among owners. These speed the case and clarify interests.
- Check recorded liens and priority. Mortgages, tax liens, and mechanic’s liens affect how sale proceeds will be allocated.
- Consider a buyout or mediation before filing: selling to a third party is often more costly than one co-owner buying out the others.
- Ask for appraisals and independent valuations before agreeing to sale terms; appraisals inform reserve prices and fairness of offers.
- Expect to pay court and referee fees. Budget for sale commissions, advertising, and possible escrow charges.
- If you live in the property, understand how occupancy and tenancy issues affect the sale; eviction processes may be necessary for a purchaser to take possession.
- Tax implications: proceeds may create capital gains exposure. Consult a tax advisor to understand potential liabilities.
- Talk to a lawyer experienced in California real estate and partition law early. An attorney can explain options (partition in kind, sale, buyout), estimate costs, and negotiate settlements that avoid a public sale.
Disclaimer: This article is for general informational purposes only and is not legal advice. It does not create an attorney-client relationship. For advice about a specific situation, consult a licensed California attorney.