The good news is that unless an exception applies, a co-owner cannot be forced to remain a co-owner if that is not what they want. If the other co-owners are unwilling to sell or buy out your interest in a property for a price acceptable to you, forcing the sale of jointly owned property through a type of lawsuit known as a partition action is a viable option.

In this article, we will discuss everything you need to know to sue for partition of property. It will address:

  • What is a partition action?
  • When does the right of partition apply?
  • What is the cost of partition actions?
  • How to file a partition action
  • How to win a partition action
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What Is a Partition Action?

When two or more co-owners cannot agree on how to best use or dispose of a piece of real property, they have an absolute right to bring a type of lawsuit known as a partition action to the appropriate court.

By filing for partition of property, a co-owner can terminate their interest in a piece of real property by forcing its sale and having the proceeds from the sale distributed equitably and fairly among the co-owners.

While it is possible to defend partition actions, doing so is difficult, as the court typically cannot force a co-owner to maintain ownership of a property they do not want.

Inherited Property Can Be Partitioned

Partition actions can arise in the context of probate when there are disputes surrounding the disposal of a decedent’s real property that multiple beneficiaries have inherited together through an estate distribution or trust fund distribution

If the beneficiaries do not wish to jointly own the property, and they do not agree on how to divide up their interests in the property or on a fair price for a buyout, a partition action can be brought to force the sale of the property. 

For instance, if a will or trust calls for an inherited property split between siblings, one sibling may wish to keep the property, whereas the other siblings wish to terminate their interests in it through a sale. Once the title to the property is distributed to the siblings, if the sibling seeking to maintain ownership of the property cannot reach a buyout agreement with their siblings who are seeking to sell, the latter can file a partition action forcing the sale of the jointly owned property.

As another example, if a decedent had owned only a percentage share of a piece of property, their beneficiaries will inherit only that share upon their death. If it is undesirable or illogical for the beneficiaries to jointly own the property with its other owners, they could try to either make a buyout agreement with the other owners or convince them to sell the property. If the co-owners cannot agree on how to dispose of the property, the new owners could sue for partition of property and force its sale.

When Does the Right of Partition Apply?

The right of partition allows co-owners who are seeking to terminate their interests in a piece real property to do so by utilizing the appropriate court to force the sale of the property.

The right of partition for co-owners is absolute when a piece of real property is jointly owned unless co-owners previously waived the right of partition through a binding contractual agreement. In the context of probate, for example, a decedent may have explicitly disallowed their real property from being sold in their will or trust.

If the aforementioned exceptions don’t exist, any co-owner of real property can bring a lawsuit for partition in California – even in instances where only a minority of co-owners are seeking to sell. While forcing the sale of jointly owned property can seem unfair when the majority of its co-owners are looking to hold on to their interests in the property, the law cannot force a party to own property they do not want.

For the reasons mentioned above, a partition lawsuit can be difficult to stop, although it is not impossible. A skilled trust and estate lawyer can help you brainstorm how to stop a partition action.

What Is Required to Bring a Partition Action?

The most basic requirement for anyone seeking to sue for partition of property is that they are a co-owner of the real property at issue (i.e., they must co-own the real property with at least one other person). This means that if a person’s name does not appear on the title of the property, they are typically not entitled to file a partition action, even if they eventually will be taking ownership of the property.

In the context of probate, a will or trust may designate a decedent’s home to pass to multiple beneficiaries, but until the executor or trustee, respectively, transfers the title of the home to said beneficiaries, the beneficiaries will not be permitted to bring a partition action. In instances where the executor of the estate or trustee of the trust is delaying selling or transferring a home because they are residing in it rent-free, a claim can be brought to remove and surcharge the executor or trustee; however, a partition action will not be an option since the beneficiaries are not officially owners of the property yet.

If this first requirement of valid ownership has been satisfied, at least the following conditions must be met to bring a partition action:

 

  • The real property in question cannot be physically divided.
  • One or more co-owners want to sell the real property in question, but the other co-owners are refusing to sell.

 

In most instances, it is impossible to divide real property fairly and equitably. For instance, how would one go about dividing a home? If one co-owner is seeking to sell a home and the other co-owner is seeking to keep it, the only reasonable approach would either be for the co-owner seeking to keep the home to buy out the other co-owner’s interest in the home or for the home to be sold and the proceeds from the sale to be divided equally between the co-owners.

It is generally in the best interests of co-owners to reach an agreement about the use and/or disposal of real property independent of the court, since partition actions can get costly; however, when an agreement cannot be reached, forcing the sale of jointly owned property through a partition action may be the only option for the co-owners seeking to terminate their interests in the property.

What Happens in a Partition Action?

When the co-owners of real estate cannot agree on how to best use or dispose of the property in question, it may be necessary for them to file a partition action with the appropriate court. This is best accomplished with help from an experienced probate lawyer, who can help present their case and ensure the outcome of the dispute is in line with their clients’ interests.

Forcing the sale of jointly owned property through a partition action is a commonly used remedy in real estate disputes and one that is available to all co-owners – so long as they did not previously waive their right of partition through a legally binding contractual agreement. 

What to Consider Before You Sue for Partition of Property

There are pros and cons to bringing a partition action that co-owners should consider before suing for partition of property

The downsides of partition actions are what one might expect. They can be expensive, time-consuming and emotionally draining. The advantage of a partition action is that it can bring a long-standing real estate dispute to a close when co-owners cannot agree on the terms of an agreement or certain parties are refusing to cooperate. Partition actions also present the possibility for co-owners to not only recoup their attorney’s fees and costs but also reimbursement of mortgage payments, taxes, insurance costs, the costs of repairs and renovations and other expenditures related to the property in question.

A lawyer can help co-owners determine whether the advantages of suing for partition of property outweigh the disadvantages after learning more about the property dispute at hand. If co-owners of property have considered less costly alternatives to partition actions but still are not in agreement about how to move forward, filing for partition of property is likely their best option.

How to File a Partition Action

Once co-owners have weighed the cons of partition actions against the pros and decided that a partition action is their best path forward, they should get in touch with a lawyer to help them navigate the process of bringing a partition claim. Co-owners should be prepared with copies of all documents related to the disputed property when meeting with their lawyer, so the lawyer can have a comprehensive understanding of the matter at hand. These documents can include everything from the grant or trust deed to the mortgage agreement.

The lawyer will then proceed with filing a partition action with the courthouse located in the same county as the property at issue. Once the complaint is submitted, the lawyer will record with County Recorder Office a notice of pendency of action, also known as a lis pendens. This type of notice serves to inform anyone who is showing interest in the property that a legal proceeding in regard to the property is currently taking place. 

Once the partition case is heard by the judge, the court will make a determination about whether to uphold or deny the partition of property request. If the request is approved, the court will order the property sold.

Types of Partitions

Put simply, a co-owner who brings a lawsuit for partition in California is seeking to fairly and equitably divide a piece of real property among all its co-owners with the help of the court. Partition actions are used as a last resort when the co-owners of property are in disagreement about how to achieve this division, or about whether to sell at all.

There are three possible outcomes to a partition action; they include:

 

  1. Partition by Sale: The court orders the forced sale of the real property at issue; once the sale is made, the proceeds from the sale will be divided among the co-owners according to their percentage shares. The partition by sale can be ordered to occur through a private sale, public auction or by listing the property with help from a licensed real estate broker.
  2. Partition by Kind: The court orders the physical division of property so that each owner receives an undivided interest in their portion of the property. When physically dividing property is possible, it is generally what the court prefers so that no owner is required to sell against their will.
  3. Partition by Appraisal: The court orders one or more parties to purchase the other parties’ interests in real property on certain agreed-upon terms following an independent appraisal of the property. Partition by appraisal cannot be forced and is often preferred over open market sales of property, since it can eliminate high escrow fees and broker commissions. A partition by appraisal can only take place if all the involved parties agree in writing to this kind of partition.

Partition by sale is the most common type of partition action pursued. In order for the court to order a partition by sale over a partition by kind, the burden of proof will be on the party bringing the partition action to prove that either the property cannot be physically divided or that the physical division of property would significantly decrease the value of each owner’s interest.

It is important to note that the parties involved in a partition lawsuit can come to an agreement outside of court even if a partition action has already been filed.

What Is the Cost of a Partition Action?

The cost of a partition action will depend on the nature of the litigation at hand; the more complex the litigation, the more expensive the partition action will be. It will also depend on the parties’ willingness to settle the dispute before trial.   

The good news is that the attorney’s fees and costs incurred by a partition action may be recoverable. The party seeking the partition action can ask the court to award them attorney’s fees and costs from the opposing party or from the proceeds from the sale of the property.

The parties also may be able to recover payments they had made that were in addition to their ownership interest. These recoverable expenditures may include everything from mortgage payments and taxes to their contributions to improvements, renovations, or upkeep of the property. To ensure these costs can be recovered, it is crucial to keep thorough records of every payment made in relation to the property.

How to Win a Partition Action

How to win a partition action will depend on what the party bringing the partition action hopes to achieve. Perhaps all they are seeking is to receive a fair amount for their ownership interest in the property. Perhaps they are seeking to take sole ownership of the property in question. To win a partition action, parties must determine from the get-go what they hope the outcome of the partition lawsuit to be.

Finally, to achieve the best possible outcome for a partition action, it is necessary to have an estate and trust lawyer on your team. They can help enforce your rights and ensure your interests stay protected. A lawyer might even be able to help settle the dispute outside of court, saving you a substantial amount of money.

Are you looking to sue for partition of property? Call us to learn more!

Are you wondering how to file a partition action? Or perhaps you want to learn more about the alternatives that are available to forcing the sale of jointly owned property. Keystone’s experienced probate lawyers deal in real estate disputes every day and can help you achieve the best possible outcome for your case. Schedule a free consultation to learn how we can help!