A partition action seeks to sever co-ownership of property, generally by court-ordered sale. A need for a partition action generally arises when there is breakdown in the co-owner relationship such as disagreements about how to manage or use the property. With the exception of community property (property held jointly between spouses), most jointly held real property can be partitioned. Unless the right to invoke a partition action has been waived through a co-ownership agreement (such as a Tenancy in Common Agreement), partition is generally an available right under California law.
What Happens In A Partition Action
A partition action allows a court to divide the property between the co-owners according to their respective interests, thus dissolving the co-ownership. In most cases, this division is done through the sale of the property through a court-appointed referee. For example, if one co-owner has a 70 percent interest in a property, and the other co-owner has a 30 percent interest in a property, the proceeds from the sale of the property would usually be split accordingly, unless there were other factors present that the court determined should change the division percentages — called "equitable factors." For instance, if the 30 percent co-owner had personally invested more money into upgrades or repairs to the property than the 70 percent owners, the court may take this into account when dividing the proceeds, and award 30 percent co-owner a higher share based on the owners' investment.
Settling A Partition Action
Actions for partition can also end in a settlement, in which the parties agree to the terms of the partition. If the parties are able to agree on the manner of division, this is generally a less-costly method and provides the parties an opportunity to get the best price for the property through the real estate market, rather than at a public auction.
Contact Zacks, Freedman & Patterson, PC at 415-956-8100.