What Is a Partition Action in California?

Types of Partition: Sale vs. Physical Division

California law recognizes two types of partition: partition by sale and partition in kind.

Partition by Sale. This is the most common type. The court orders the property sold on the open market and the proceeds divided among the co-owners according to their ownership interests. The court appoints a referee, typically a real estate broker or attorney, to oversee the sale. The referee lists the property, manages showings, accepts offers, and reports to the court. The court approves the sale, and the referee distributes the proceeds after deducting sale costs, mortgage payoffs, property taxes, and liens.

Partition in Kind. This involves physically dividing the property into separate parcels, with each co-owner receiving a parcel. Partition in kind is rare in urban areas like Los Angeles because most properties are not large enough to divide practically. It is more common with rural land or large acreage where physical division is feasible and does not destroy the value of the parcels.

Courts prefer partition by sale when physical division would significantly reduce the property’s value or when the co-owners purchased the property with the intent of using it as a single unit, such as a family home. The presumption in favor of sale can be rebutted, but it is difficult in residential real estate cases.

How the Partition Process Works

A partition action follows a specific legal process that can take six months to two years depending on the complexity of the case and the cooperation of the parties.

Step 1: Filing the Complaint. One co-owner files a complaint for partition in the superior court of the county where the property is located. The complaint identifies the property, the co-owners, and their respective interests. It asks the court to order partition by sale or in kind.

Step 2: Service and Response. The complaint is served on all co-owners, who have 30 days to respond. A co-owner who wants to buy out the plaintiff can make an offer, but the plaintiff is not required to accept. The court proceeds with partition unless all co-owners agree to a voluntary resolution.

Step 3: Appointment of Referee. The court appoints a referee to oversee the partition. The referee is a neutral third party, often a real estate professional or attorney, who manages the sale or division process. The referee’s fees are paid from the sale proceeds.

Step 4: Sale or Division. If the court orders partition by sale, the referee lists the property, markets it, and solicits offers. The referee reports offers to the court, and the court approves the highest reasonable offer. If the court orders partition in kind, the referee arranges for a survey and physical division.

Step 5: Distribution of Proceeds. After the sale, the referee distributes the proceeds. First, the mortgage, property taxes, and liens are paid. Next, the referee’s fees and the parties’ attorney fees are deducted. The remaining balance is divided among the co-owners according to their ownership interests.

Costs and Attorney Fees in Partition Actions

Partition actions are expensive. The costs include court filing fees, attorney fees for both sides, referee fees, appraisal fees, and sale costs such as broker commissions and escrow fees. These costs are typically deducted from the sale proceeds before distribution.

Under Code of Civil Procedure Section 874.040, the court can award attorney fees to the plaintiff if the defendant acted unreasonably in refusing to agree to a voluntary sale or buyout. This fee-shifting provision encourages co-owners to resolve disputes without litigation. If one spouse unreasonably refuses to sell or buy out the other, they may end up paying both parties’ attorney fees from their share of the proceeds.

The fee-shifting provision is a powerful incentive to settle. A co-owner who fights partition without a good reason may see their share of the proceeds significantly reduced by fee awards. Courts evaluate whether the refusal to sell was reasonable based on the specific circumstances, such as attempts to secure financing, legitimate disputes over value, or good-faith efforts to reach agreement.

Buyout as an Alternative to Partition

Before filing a partition action, co-owners should consider a voluntary buyout. A buyout allows one co-owner to purchase the other’s interest, preserving the property for the buyer and providing cash to the seller. Buyouts avoid the costs, delays, and uncertainty of partition litigation.

Buyouts are common in divorce when one spouse wants to keep the family home. The keeping spouse refinances the mortgage, pays the other spouse their equity share, and takes sole title. This requires the keeping spouse to qualify for a new loan and have sufficient cash or equity to pay the other spouse.

If a buyout is not possible immediately, the parties can structure a deferred buyout. One spouse remains in the home, pays the mortgage, and buys out the other spouse over time through monthly payments or a lump sum at a future date. These arrangements should be in writing and secured by a deed of trust to protect the selling spouse’s interest.

Partition Court vs. Family Court

Partition actions are civil matters, not family law matters. They are filed in the civil division of the superior court, not the family court. This distinction matters because the procedures, timelines, and remedies are different.

Family courts have broad discretion to divide community property and can order specific performance, such as compelling a spouse to sign a deed or refinance a mortgage. Partition courts have more limited authority. They can order sale or physical division, but they cannot order one co-owner to buy out the other or to continue owning the property together.

If the property dispute arises during the divorce, the family court should resolve it as part of the property division. If the dispute arises after the divorce is final and the former spouses remain co-owners, partition in civil court is the appropriate remedy.

Avoiding Partition Through Proper Divorce Planning

The best way to handle post-divorce property disputes is to prevent them. A well-drafted divorce judgment should address every piece of real estate with specificity, leaving no room for future deadlock.

If one spouse is keeping the home, the judgment should require refinancing within a specific timeframe, transfer of title, and payment of the buyout amount. If the home is being sold, the judgment should specify the listing price, the choice of agent, the division of proceeds, and a deadline for listing. If the sale is deferred, the judgment should address who pays the mortgage, who handles maintenance, and when the sale must occur.

When the judgment is silent or vague, partition becomes the inevitable remedy. Former spouses who cannot cooperate and who have no written agreement are left with only the civil court’s power to force a sale.

At Hayat Family Law, we draft divorce judgments that prevent partition by addressing real estate clearly and completely. When partition is unavoidable, we represent clients in the civil action to ensure their interests are protected and the sale is fair. Whether you need to force a sale or defend against one, we will guide you through the process.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Partition actions involve civil court procedures and specific statutory requirements. Results vary based on specific circumstances, and past performance does not guarantee future outcomes.

Sources:

• California Legislative Information – Code of Civil Procedure Sections 872.210, 872.810, 874.040
• California Legislative Information – Family Code Section 2550
• California Courts – Civil Litigation Rules