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Recording a lis pendens has stringent requirement for formatting and service to ensure effectiveness. Free form lis pendens template.
If you’re wondering “what is a lis pendens?“, you’re not a lone. Formerly known as a “lis pendens,” a notice of pendency of action is a written document, recorded with the county recorder, that provides constructive notice of a pending court action (i.e. a lawsuit) that affects title to, or possession of, real property.
However, recording a lis pendens has stringent requirement. See Cal. Code Civ. Proc. § 405.23. The form lis pendens below provides an example of a notice of pending action sent for recording with the county recorder.
It is highly recommended that you contact a skilled real estate attorney prior to using this template. The lis pendens must be executed and served in the right format or it will be subject to expungement.
[Attorney Name], State Bar No. _____
Attorneys for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF [SPECIFY COUNTY]
[Name of Plaintiff],
[Name of Defendants],
CASE NO. _______
NOTICE OF PENDENCY OF ACTION PURSUANT TO CCP § 405.20 (LIS PENDENS)
NOTICE IS HEREBY GIVEN that an action has been commenced in the Superior Court for the County of [Specify County] in the above-entitled court, Case No. ______, concerning real property and affecting the possession of and title to real property by Plaintiff [Name of Plaintiff], against Defendants [Name of Defendants].
The real property, comprising the subject matter of this action is certain real property located within the county of [Specify County], [Property Address], Assessor’s Parcel Number [Specify APN]. The mentioned parcel of real property is located within the State of California and is legally described as follows:
DATED: [Specify Date]
[Name of Attorney]
Attorneys for Plaintiff
(Notary Acknowledgement Attached)
PROOF OF SERVICE OF NOTICE OF PENDENCY OF ACTION (CCP 405.22)
I am at all times herein mentioned over the age of eighteen years I am not a party to the within action or cause, and my current business address is [specify address].
On [Date], I served a copy of the foregoing NOTICE OF PENDENCY OF ACTION PURSUANT TO CCP § 405.20 (LIS PENDENS) in this matter and effected service in the following manner:
BY CERTIFIED MAIL/RETURN RECEIPT REQUESTED: I sealed and prepaid such envelope addressed as stated below, with certified fees thereon and return receipt requested, and placed it in the United States Postal Service located in [City of Office], California.
An envelope was addressed to each addressee as follows:
[Address of Defendant]
I declare under penalty of perjury under the laws of California that the foregoing is true and correct and that I could competently testify thereto if called upon to do so.
Date: [Date] _______________________
[Name of Party Mailing the Lis Pendens]
It is important to remember that a lis pendens is not effective unless it has been served by certified mail. Cal. Code Civ. Proc. § 405.22.
Because a lis pendens is such a powerful tool to resolve legal disputes regarding title to or possession of real property, California law requires that you either have an attorney file the lis pendens or apply to a court. Cal. Code Civ. Proc. § 405.21. Indeed, the ramifications of filing an erroneous lis pendens can be serious, including attorney’s fees. If you have questions about lis pendens law in California, contact a skilled real estate litigation attorney in California.
How to Win a Partition Action in California A partition action is the only court process in California to end disputes when parties are co-owners of real estate. Under California Code of Civil Procedure § 872.210, so long as a partition is found to be appropriate, the court must divide the real estate equitably among...
A partition action is the only court process in California to end disputes when parties are co-owners of real estate. Under California Code of Civil Procedure § 872.210, so long as a partition is found to be appropriate, the court must divide the real estate equitably among its co-owners, as explained in our Ultimate Guide to Partition Actions in California.
Our experienced real estate attorneys in California provide some of the tips and tricks to ensure that you are the winner in the partition lawsuit.
Perhaps the biggest issue that arises in partition actions is forcing the co-owners to sell. While there are rumors that the court is required to weigh the equities to allow the court to grant a complaint for partition by sale only if the plaintiff is deemed to be a good person, and the defendant doesn’t have a need to reside at the property, this is completely made up. There is no such requirement! If the co-owner in possession is telling you this, they’re pulling your leg.
Rather, the law refers to the “right to partition.” Code Civ. Proc. § 872.710(a). The rule is that the “partition…shall be as of right unless barred by a valid waiver.” Code Civ. Proc. § 872.710(b). Indeed, “each cotenant has an ‘absolute’ right to partition the common property.” Right of partition—In general, 4 Cal. Real Est.(Miller & Starr 4th ed.) § 11:14.
Indeed, courts have explained that, “if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right is absolute.” Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603. Another court found that, so long as “the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right to partition is absolute, and cannot be denied, ‘either because of any supposed difficulty, nor on the suggestion that the interest of the cotenants will be promoted by refusing the application or temporarily postponing action, . . .’” Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325. In other words, the right to partition is absolute in California.
With some rare exceptions, a partition lawsuit brought by an experienced California partition lawyer cannot be lost as the property will eventually be sold, so long as it cannot be divided by partition in kind.
If your co-owner has filed a partition lawsuit against you, it is important to understand that you have rights.
As explained above, the primary hurdle that a plaintiff might face is whether there has been a waiver of the right to partition. Indeed, a “co-owner of property has an absolute right to partition unless barred by a valid waiver.” Orien v. Lutz (2017) 16 Cal.App. 5th 957, 962 (citing Code Civ. Proc. § 872.710(b) (“partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver”)); see, e.g., Pine v. Tiedt (1965) 232 Cal. App. 2d 734; American Medical International, Inc. v. Feller (1976) 59 Cal.App. 3d 1008, 1014. Ordinarily, a waiver of the right to partition is found in “an agreement among co-owners of property….” Orien v. Lutz (2017) 16 Cal. App. 5th 957, 963. Establishing this defense is possible, but a writing is likely to go a long way with a court.
However, the most common way to stop a partition is to buy out the co-owner. As explained in our article on Affirmative Defenses to a Partition Action in California, there are many tricks to ensuring that you pay the least amount of money to your co-owner, including the costs of sale in any calculation as well as properly calculating any offsets that might be awarded.
Finally, after the sale occurs, the court conducts an accounting where the proceeds are not always divided according to the percentage interests of the owners. Rather, if one owner can show that they have offsets, they may be awarded more than their fractional interest.
For example, a plaintiff can recoup attorney’s fees from the net proceeds that would have otherwise been distributed to an uncooperative defendant in a partition action. As described in The Trick to Recovering Partition Attorney’s Fees Against an Uncooperative Co-Tenant, plaintiffs should document all instances of non-cooperation by the co-tenant in an orderly sale or other offer to accept a buyout. This documentation can then be present to the court in the accounting that occurs after the property is sold. In other words, “section 874.040 permits the trial court to apportion attorney fees based upon equitable considerations.” Lin v. Jeng (2012) 203 Cal.App. 4th 1008, 1025; see Code. Civ. Proc. § 874.010(a). To recover attorney’s fees in a partition action, plaintiffs must find special facts demonstrating the inequity of paying their own attorney fees, such as active wrongdoing toward co-owners and attempts to increase cost to other parties.
Even more commonly, offsets are owed for ordinary expenses paid only by one party, such as the mortgage, taxes, insurance and repairs. As Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1036 explained:
Every partition action includes a final accounting according to the principles of equity for both charges and credits upon each co-tenant’s interest. Credits include expenditures in excess of the co-tenant’s fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages, and other liens, insurance for the common benefit, and protection and preservation of title.
There are many tricks to recovering offsets, but documentation of the expenses and an accounting prepared in line with the state of the law by an experienced partition attorney will be crucial. More information is available in our blog post on recovering costs in a partition action.
There are many ways to become a co-owner of real estate, but unless all co-owners agree to sell, there is only one remedy under the law: a complaint for partition by sale. To ensure that a partition action proceeds smoothly given the unique complications in every case and to maximize fee recovery, co-owners should seek the advice of an experienced partition attorney in California.
How does a California Court decide Partition by Sale of Property Over Physical Division? One common dispute between co-owners is whether to partition the property by sale or physically divide the property, known as partition in kind. This article provides the advice of an experienced partition attorney in California on how courts decide between these two...
One common dispute between co-owners is whether to partition the property by sale or physically divide the property, known as partition in kind. This article provides the advice of an experienced partition attorney in California on how courts decide between these two outcomes of a partition action.
A partition action is the only court ordered process under California law to end disputes over-co-owned real estate. Under California Code of Civil Procedure Section 872.210, the court must divide California real estate equitably among its co-owners. More information on partition actions in general can be found at Ultimate Guide to Partition Actions in California.
A complaint for partition by sale can be granted whereby a court orders sale of a jointly owned property and all owners receive their corresponding shares. Physical division, or partition in kind, occurs when a property is divided so that each owner receives undivided interest in his or her own share of the land. In general, courts will prefer physical division over partition by sale when ending property co-ownership disputes. Partition is by physical division unless the parties agree on a sale or the court determines that partition by sale would be “more equitable.” Code Civ. Proc §§ 872.810, 872.820; see 12 Witkin, Summary 11th Real Prop § 73 (2020).
The leading treatise on real estate law in California, Miller & Starr, explains that “[t]he burden of proof is on the party who seeks a sale, rather than a physical division, to prove that it would be ‘more equitable’ to sell the property rather than to divide it and distribute portions in kind to the cotenants.” Right of partition—Partition by a sale of the property, 4 Cal. Real Est. (4th ed.) § 11:17. “In order to compel a sale rather than a physical division, it must be shown that either: (1) a division into subparcels of equal value cannot be made, or (2) a division of the land would substantially diminish the value of each party’s interest, such that the portion received by each cotenant would be of substantially less value than the cash received on a sale.” Id.
The seminal case of Butte Creek Island Ranch v. Crim (1982) 136 Cal. App. 3d 360, 366–67:
There are two types of evidence which have been held sufficient to justify a partition sale of property rather than physical division. The first is evidence that the property is so situated that a division into subparcels of equal value cannot be made. This test is not met by evidence that a portion of the property is not equal to the whole, for that is always the case in a partition action. Nor is this test met by evidence that the land is not “fungible” or uniform in character. (See Williams v. Wells Fargo Bank, supra., 56 Cal.App.2d at pp. 647-648.) In order to meet this test the party desiring a partition sale must show that the land cannot be divided equally. (East Shore Co. v. Richmond Belt Railway (1916) 172 Cal. 174, 180.) An example of this type of situation is provided in Sting v. Beckham (1949) 94 Cal.App.2d 823, where it was shown that the major value of the land consisted of a water well and that without the well the land had little value. In that case physical division of the land would have required an award of the subparcel with the well to one party to the manifest prejudice of the other party. Another example is provided in Priddel v. Shankie (1945) 69 Cal.App.2d 319, which involved a small (40 feet by 140 feet) inside lot with structures located in such a way as to preclude equal partition.The referee appointed by stipulation of the parties concluded that parcel B was capable of physical division and that this was the most equitable solution. That parcel could be divided into a north and a south parcel of approximately 90.5 acres each and provision could be made for access easements over existing paths. Plaintiff initially conceded the fairness of such a division before a change of mind based upon factors extraneous to the feasibility of physical division. Upon such a change of heart it was incumbent upon plaintiff to prove that the land was not capable of equal division; yet the record is insufficient in this regard. It may be admitted, as defendant in fact conceded, that ownership of the entire parcel B would be more advantageous to plaintiff. That concession, however, does nothing to establish that the property is not capable of equal division. Moreover, any potential prejudice through an imprecise division was obviated by defendant’s offer to permit plaintiff to select which of the subparcels it desired. Sale of the property is thus not supported by this first type of evidence.
The second type of evidence which supports a partition sale rather than physical division is economic evidence to the effect that, due to the particular situation of the land, the division of the land would substantially diminish the value of each party’s interest. The generally accepted test in this regard is whether a partition in kind would result in a cotenant receiving a portion of the land which would be worth materially less than the share of the money which could be obtained through sale of the land as a whole. This is a purely economic test. If plaintiff, who demands that the land be sold, can receive a portion of the land through physical division and that portion could be sold for a sum equal to the amount it could realize through sale of the entire parcel then as a matter of law no economic prejudice can be shown. The manifest inequity of ousting an unwilling cotenant from the land where no economic detriment is suffered cannot be permitted. An example of this type of situation is provided in Formosa Corp. v. Rogers (1951) 108 Cal.App.2d 397, there a 17.4 acre movie studio had been developed in such a unique manner that physical division would result in damage to the aggregate value of the land in the amount of $1.5 million.
Skilled Family Law Attorney Creates the Ultimate Consent for Stepparent Adoption Template and Reveals it for Free!
When a biological parent agrees to terminate his or her parental rights and consent to a stepparent adopting his/her child, the hard part is over, right? So why is it that when you Google “Consent for Stepparent Adoption Form” the results are anything but easy to sift through?
Isn’t there a Judicial Counsel Form for a biological parent to sign to terminate his or her rights and consent to a stepparent adoption? The short answer is no.
Many courts in California have a local form for this purpose, and there is a form that can be used (if you can find it) from the California Department of Social Services, but having closely studied the adoption and freedom from parental custody and control provisions of the Family Code, it does not appear that this form, or any others available online, contain the language that seems to be required for termination of parental rights and consent to a stepparent adoption.
For this reason, the knowledgeable adoption attorneys of Talkov Law have created a document to assist families and make this complicated process a little easier. This consent form is drafted for cases meeting the abandonment criteria of Family Code § 7822 (a)(3) and § 8604 (b), (c).
We also provide free templates for:
It is highly recommended that you contact a skilled family law attorney prior to using this template. Adoption law in California can be frustrating and unclear when litigants attempt to navigate the process on their own. If you choose to use this template without contacting an attorney, keep in mind that the biological parent MUST sign this document in the presence of the court clerk in their county, or in the presence of a notary, probation officer, etc.
1. I, [Biological Parent], am the natural and biological parent of the minor child, [Minor Child], [Date of Birth], pursuant to the [Judgment of Paternity, Birth Certificate, or Other Document Establishing Parentage].
2. I understand that the Petitioner in this instant matter, [Stepparent], is the spouse of the minor child’s other parent, [Custodial Parent], and stepparent of the minor child.
3. I further understand that Petitioner, [Stepparent], seeks to adopt the minor child, [Minor Child], [Date of Birth].
4. I hereby acknowledge and declare that I have not communicated with, seen, or visited the minor child, [Minor Child], for a period exceeding one (1) year, pursuant to Family Code § 7822 (a)(3) and § 8604 (b), (c).
5. I hereby further acknowledge and declare that I have not paid for the care, support, or education of the minor child, [Minor Child], for a period exceeding one (1) year, pursuant to Family Code § 7822 (a)(3) and § 8604 (b), (c).
6. Based on the above, I hereby give my full and free consent to the adoption of [Minor Child] by Petitioner, [Stepparent].
7. Based on my full and free consent to the adoption, I understand and agree that this document shall be filed simultaneously with the adoption request, pursuant to Family Code § 9003 (a).
8. I understand that with the signing of the order of adoption by the court, I shall be forever relieved from all rights to custody, services, and earnings of the minor child and I may not reclaim said child, pursuant to Family Code § 8617 (a).
9. I also understand that I am voluntarily severing the legal relationship of parent and child along with all the rights and parental duties towards, and all responsibility for, the minor child, and have no right over the minor child, pursuant to Family Code § 8617 (a).
10. I further acknowledge and understand the provision of Family Code § 9004, reading as follows: “Notice to the parent who gives the child for adoption: If you and your child lived together at any time as parent and child, the adoption of your child through a stepparent adoption does not affect the child’s right to inherit your property or the property of other blood relatives.”
11. I understand that my consent to the adoption of the minor child, [Minor Child], by Petitioner, [Stepparent], may not be withdrawn except with court approval, pursuant to Family Code § 9005 (a).
12. I acknowledge and agree that this document was prepared by the attorney for Petitioner, [Stepparent]. I am not represented by legal counsel at the time of execution of this document. I acknowledge that I have been advised to obtain independent legal counsel, that I have voluntarily chosen not to consult with any attorney, that I have read and understand the contents and legal effect of this consent to adoption, and I have signed it freely and voluntarily.
13. I hereby acknowledge and declare that I am fully and completely informed as to the facts relating to the subject matter of this consent to adoption, and as to my rights and liabilities. I hereby execute this consent to adoption voluntarily, free from fraud, undue influence, coercion or duress of any kind; have given careful and mature thought to the execution of this consent to adoption; and understand each provision of this document.
14. I have not made, nor have I relied upon, any promises or agreements as inducement to execute this consent to adoption. I have read this consent to adoption and I am fully aware of its content and its legal effect.
15. This consent to adoption is executed in the State of California and shall be subject to and interpreted under the laws of the State of California.
Based on the foregoing, and under the laws of the State of California, with the signing of this document my consent may not be withdrawn except with court approval and that with the signing of the order of adoption by the court, I shall give up all my rights of custody; services, and earning of said child, and that said child cannot be reclaimed by me.
Executed on ___________, 2020, by______________________________________
A Complete Guide to Termination of Parental Rights in Stepparent Adoptions in California Family Court!
Adoption is the legal process of establishing a legal parent-child relationship when the adopting parent is not the child’s biological or birth parent. Once the adoption is final, the adoptive parent(s) has/have all the legal rights and responsibilities of a parent-child relationship. The new parent-child relationship is permanent. An adoptive parent can be a stepparent or domestic partner of one of the birth parents, a relative of the child who has been caring for the child, or someone not related to the child by blood.
One of the most common adoption scenarios in California occurs when a stepparent adopts the child of the person that he or she has married. Marriage itself does not provide a stepparent with the legal rights and responsibilities associated with parenting a child. The additional step of having the family court approve the stepparent’s adoption of the stepchild is necessary.
A stepparent adoption begins with the filing of a petition for the adoption. The petitioner is the stepparent who wants to adopt the child, and the case is generally filed in the county where the petitioner lives (Family Code 9000 (a)). Usually this is the same county where the child resides.
However, in order for a child to be adopted by a stepparent, the parental rights of their other biological, presumed, or natural parent must be terminated. A parent can lose his or her parental rights either voluntarily or involuntarily.
Terminating a parent’s rights is not easy, and for good reason. Parents have a fundamental constitutional right to parent their children and children have a constitutional right to a parent-child relationship.
The process involved in terminating a parent’s rights and adopting a child is not always straightforward, and without a thorough understanding of this area of law it can be frustrating and confusing.
Whether you are a stepparent thinking about adopting your stepchild, a parent wondering if your spouse can adopt your child, or a biological parent thinking about terminating your parental rights, you are in the right place.
California family courts only allow parents to terminate their parental rights voluntarily under certain circumstances. Generally, it is only possible to give up parental rights for the purposes of adoption.
If a parent wishes to voluntarily relinquish parental rights for the purposes of adoption, there is a process in place that requires all parties involved to provide the court with adequate notice.
If one parent will retain custody and the custodial parent’s new spouse or partner legally adopts the child, the court will need to perform a review process to ensure the adoption is in the child’s best interests. It is also possible for a parent to relinquish parental rights by refusing to respond to a request for termination of parental rights and/or signing a relinquishment of parental rights form.
After the initial petition is filed by the stepparent seeking to adopt his or her spouse’s child, the documents must be served on the biological parent. Once served, the other parent can sign a form in the presence of the court clerk in their county acknowledging their consent that their parental rights are to be terminated, or in the presence of a notary, probation officer, etc.
The biological parent can also appear in court on the hearing date to acknowledge their consent, or they can inform the social worker conducting the investigation that they consent. The forms are filed and at the hearing date, the court will terminate the parent’s rights and set a further hearing on the adoption (by this time, the social worker will have completed their report and recommendation).
If the noncustodial parent consents to the adoption and to terminate his/her rights and he or she lives in California, then that parent will need to sign a document consenting to the adoption. The consent document varies from county to county, and is often a local court form.
Alternatively, a pleading can be drafted with the language necessary to consent to the adoption. This document must be signed in the presence of an official court investigator, clerk, or notary public.
By consenting to the termination of parental rights, the noncustodial parent is giving up his or her rights to visitation with the child and other rights associated with parentage. That parent would no longer be able to pursue legal visitation rights via a court order. By giving up his or her rights in a stepparent adoption, however, the noncustodial parent will become unburdened from certain legal obligations such as being required to pay child support.
The other way a parent’s rights can be terminated is involuntarily. Several circumstances may lead to a parent involuntarily losing their parental rights. Typically, the conditions include abuse, neglect, or abandonment of the child.
Examples of reasons a parent may involuntarily lose parental rights are:
If the noncustodial parent does not want to consent to giving up his or her parental rights, then that parent will need to be notified of the pending petition for termination of rights and given a chance to plead his or her case in front of a judge against termination.
Stepparent adoption cases get extremely difficult when the biological parent that is the “responding party” to the case does not consent to their rights being terminated. The biological parent’s fundamental constitutional right to parent their children creates a substantial presumption against termination. Unless there is a very serious problem with the biological parent or with the parent-child relationship, the court will not consider terminating the biological parent’s rights.
In order to terminate parental rights in family court, a petition to declare the child free from the parental custody and control of the biological parent must be filed and served on the biological parent. In the event the biological parent cannot be found, the petitioning party is expected to take reasonable steps to locate the biological parent and give them reasonable notice of the pending action. If the parent cannot be located, detailed evidence will need to be presented to the court regarding the steps taken took in locating and/or obtaining consent from the other parent.
In contested stepparent adoption cases, the respondent parent has the right to have an attorney appointed to represent their interests. The family court will routinely appoint an attorney to represent the responding biological parent. In these cases, the court will usually set a pretrial conference date and parties may conduct their discovery.
Once discovery is completed, the court will set trial and hear evidence on the issue of whether the stepparent’s rights should be terminated because the respondent parent has the right to a trial.
If there is not a “prima facie” case to terminate the biological parent’s rights (i.e. none of the statutory grounds allowing the court to terminate parental rights is set forth in the initial petition), the court will dismiss the petition.
Assuming the petition properly sets forth a prima facie case to terminate the parent’s rights, the parties will each have the opportunity to present evidence and argument at trial in favor of their respective positions. The social worker’s report will have been submitted to the court by the time of trial, and the social worker will most likely testify. Any other relevant witnesses will also need to testify, and any other relevant, admissible evidence will be presented at that time.
In making its determination on termination, the court will consider the ability of the stepparent to provide a suitable home for the child as well as the biological parent’s fitness and history as a parent, which can including looking at instances of domestic violence, payment of child support, drug and alcohol abuse, and ongoing presence (or lack thereof) in the child’s life.
After the trial, if the court determines that there is not sufficient evidence to warrant terminating the biological parent’s rights that will be the end of the case. If the court does sever the biological parent’s rights, there is a waiting period to allow for an appeal, and a further hearing will be set thereafter on the adoption (which will be approved because the report will already have made the recommendation).
It is at the final adoption hearing where the child is brought to court, the adoption decree is signed, and the celebration occurs!
It may seem unnecessary, especially if the biological parent has fully consented to terminate his/her rights, but there is still an investigation process in stepparent adoptions.
Notably, Family Code 9001 (a) states:
Except as provided in Section 9000.5, the probation officer, qualified court investigator, licensed clinical social worker, licensed marriage family therapist, private licensed adoption agency, or, at the option of the board of supervisors, the county welfare department in the county in which the adoption proceeding is pending shall make an investigation of each case of stepparent adoption.
The stepparent/petitioner can either hire a private investigator (at his/her own cost) or the court will appoint a social worker to complete an investigation as to whether the court should approve the adoption. The investigator will interview both biological parents, the stepparent, and child. They will conduct background checks and sometimes do a home visit. The social worker will draft a written report and provide it to the court recommending either adoption or not.
It is very difficult, and generally not possible, to restore parental rights after voluntary or involuntary loss of those rights. California law does not allow a parent who has lost his or her parental rights to petition for restoration of those rights.
There is a limited circumstance where the child can petition the court to reinstate the parental rights of a parent, but these cases are few and far between. There is typically no way to restore parental rights following an adoption.
An adoption attorney can help parents, future parents, and children address parental rights issues. Ultimately, anyone with any concerns about his or her parental rights or the loss of those rights should speak with an experienced family law attorney as soon as possible. Contact us online or call us for a free consultation.
Co-owners of real estate in California have an absolute legal right to partition the property, thereby causing the property to be sold and the proceeds distributed.
As a real estate partition attorney in California, the most common question we receive is whether a co-owner has a right to partition a property by sale, meaning a court-ordered sale of the entire property to the highest buyer after the property is marketed to third parties.
California law is clear that the right to file a partition action requesting property be sold is available to any co-owner of real property, known in the law as a co-tenant (tenant-in-common or joint-tenant), is absolute.
One case explained that: “The action for partition may be brought by one or more of the persons described in section 752 of the Code of Civil Procedure. It is a special proceeding regulated by the provisions of the statute and ordinarily, if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right is absolute.” Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603.
Yet another case set forth that: “Ordinarily, if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right to partition is absolute, and cannot be denied, ‘either because of any supposed difficulty, nor on the suggestion that the interest of the cotenants will be promoted by refusing the application or temporarily postponing action, . . .’” Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325.
One treatise on California law explains the issue as follows: “Ordinarily, therefore, if a party seeking partition is shown to be a tenant in common or a joint tenant, the right [to partition] is absolute and cannot be denied, either because of any supposed difficulty or on the suggestion that the interests of the cotenants will be promoted by refusing the application or temporarily postponing the action. The only indispensable requirement is that a clear title be shown, and in no event is a partition to be denied because it might result in financial loss to the cotenants.” 48 Ca Jur Partition § 36.
This is because Code of Civil Procedure Section 872.710(a) provides that: “At the trial, the court shall determine whether the plaintiff has the right to partition.” Code of Civil Procedure Section 872.710(b) goes on to explain that “partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.” Such concurrent interests include joint tenants and tenants-in-common, i.e. co-owners of real estate.
Even the leading treatise on California real estate law, Miller & Starr, explains under the heading “Absolute right to partition” that “each cotenant has an ‘absolute’ right to partition the common property.” Right of partition—In general, 4 Cal. Real Est. § 11:14 (4th ed.). While there are very unusual cases in which the right to partition had been waived or otherwise, these cases are so far outside the fact pattern of virtually all co-owners of real estate in California that these strengthen, rather than undermine, that the right to partition is absolute.
This means that the right to partition does not depend upon the fractional interest of the co-tenant. For example, a co-tenant holding only a small fractional interest could file a partition action. One reason the law allows this is that it may be very hard, if not impossible, to market a fractional ownership of real estate, as few parties will be interested in becoming a co-owner with the remaining co-owner(s).
Moreover, the right to partition does not require infighting among the co-owners. For example, an ex-husband can file a partition action even if he has an entirely-amicable relationship with his ex-wife, so long as they are co-owners of the property. Generally, partition actions involve parties who are or were very close, such as family (or former family), intimate partners (or formerly-intimate partners), and close friends (or formerly close friends). Indeed, parties would rarely end up as co-owners unless they did so voluntarily, based on trust existing at the time, or involuntarily, based on a trust, will, divorce decree or otherwise creating the co-ownership.
Further, the right to partition does not depend upon the hardship that a partition may cause to the tenant-in-possession (co-owner-in-possession). For example, an ex-wife can file a partition action that may cause the sale of the house occupied by her ex-husband, a co-owner of the property, even if the ex-husband may have no where else to live. One reason for this is that the ex-husband is welcome to be the highest bidder for the property. To the extent the tenant-in-possession is not the highest bidder, the tenant-out-of-possession should not receive diminished profits from the sale because of the hardship it may cause the tenant-in-possession, who can only offer a diminished sum. To prevent problems caused by a tenant-in-possession who would prefer that the property not be marketed for sale, an experienced partition attorney should request that the court take appropriate action if the tenant-in-possession fails to fully cooperate with an orderly sale of the property.
There are many ways to become a co-owner of real estate, but unless all co-owners agree to sell, there is only one remedy under the law: a complaint for partition by sale. To ensure that a partition action proceeds smoothly given the unique complications in every case, co-owners should seek the advice of an experienced partition attorney in California.
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