Win Your Real Estate Lawsuit With Interlocutory Judgment

  • Nov 1 2016

It’s not unusual for family relatives to co-own real estate: parents leave the family home to all their offspring as investment property, or siblings pool their inheritance from a deceased parent and purchase investment property. But then time passes, and eventually, there will be a sibling who does not wish to co-own property with her siblings any more. Or one of the co-owners is unable or unwilling to contribute financially to upkeep, taxes or other expenses.

Code of Civil Procedure section 872.720 (a) provides, “If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.”

Code of Civil Procedure section 872.710 (b) states, “Except as provided in Section 872.730 [having to do with partnership property], partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.” (emphasis added) Parties’ interests are “concurrent” where the subject property is owned in undivided interests. [E.g. LEG Investments v. Boxler (2010) 183 Cal. App. 4th 484, 493(owner of undivided interest had absolute right to partition).]

Partition “in kind” is typically not feasible where the real estate is a single legal parcel. In that case, the court will find that partition “in kind” would be inequitable. The court has the power, in such circumstances, to order partition by sale. Code of Civil Procedure section 872.820 provides,

Notwithstanding Section 872.810, the court shall order that the property be sold and the proceeds be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment in the following situations:

(a)  The parties agree to such relief, by their pleadings or otherwise.

(b)  The court determines that, under the circumstances, sale and division of the proceeds would be more equitable than division of the property. For the purpose of making the determination, the court may appoint a referee and take into account his report.

In most real estate partition cases, it would be more equitable to sell the property than to order division. In one case we litigated, the subject property was a single residential parcel in Ventura County, and there were two residences on the parcel, which were rented out. The residences were different types, one being a small, low-rent residence and the other being a three-bedroom higher rent residence.

Courts have held that partition actions are subject to the Subdivision Map Act  Government Code section 66410.[E.g. Pratt v. Adams (1964) 229 Cal. App. 2d 602 (disallowing landowners’ attempt to circumvent Map Act by partition action because partition should not be used to defeat salutary purposes of Act).] The fact that the subject property was a single parcel meant it was more equitable to partition “by sale.”

Code of Civil Procedure section 873.240 states, “Where real property consists of more than one distinct lot or parcel, the property shall be divided by such lots or parcels without other internal division to the extent that it can be done without material injury to the rights of the parties.” Since the subject property in that case was one parcel consisting of two street addresses, dividing the property into thirds would have done material injury to the owners’ rights.

Code of Civil Procedure section 873.010 (a) provides, “The court shall appoint a referee to divide or sell the property as ordered by the court.” Section 873.040 (a) provides, “The court shall appoint as referee under this title any person or persons to whose appointment all parties have consented.” Plaintiff nominates a qualified individual to act as referee. Once the referee agrees to accept the appointment, the court will appoint the referee and the sale will occur.

We encourage you to contact the real estate attorneys at Schneiders & Associates, L.L.P. for more information or to schedule a consultation.

Posted in: Litigation, Real Estate


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