Detailed Answer
When two or more persons inherit real property as co-owners in California and they cannot agree on possession, sale or management, any co-owner may file a partition action. Code of Civil Procedure section 872.010 et seq. governs partition actions. CCP §§872.010–872.760.
A partition action asks the court to divide the property either physically (partition in kind) or by selling the property and dividing the proceeds (partition by sale). The court orders a partition in kind when the property can be divided fairly without undue harm to the owners. If a physical division is impracticable or would substantially reduce value, the court orders a sale. CCP §872.210.
The petitioner begins by filing a complaint in the superior court of the county where the property lies. The complaint must describe the property, identify all co-owners, and state each owner’s interest. The petitioner pays required filing fees. After service of the complaint, the court may appoint a surveyor or referee to assess whether an in-kind partition is feasible.
If the court orders a sale, the property goes to public auction unless the parties agree to a private sale. The sale proceeds, after deducting costs, attorneys’ fees and expenses, distribute proportionally to each co-owner’s ownership interest. Code of Civil Procedure section 873.830 authorizes the court to award costs and reasonable attorneys’ fees to a co-owner who defends against a partition action or who joins in seeking partition. CCP §873.830.
Helpful Hints
- Confirm ownership shares by reviewing the decedent’s will, trust or intestate succession records.
- Seek a preliminary title report to identify liens or encumbrances.
- Discuss potential in-kind division with co-owners before filing.
- Consider mediation or settlement to avoid litigation costs.
- Factor in court costs, surveyor fees, and possible appraisals.
- Consult a real property attorney to guide you through procedural requirements.