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How Realtors Can Force the Sale of Co-owned Property in California

Can Realtors assist their clients in selling a co-owned property? As a Realtor, you may have come across situations in which a disagreeable co-owner disrupts an otherwise easy sale. Your client may have his or her heart set on selling the home but is unable to do so without the signature of the uncooperative co-owner. ... Read...

How Realtors Can Force the Sale of Co-Owned PropertyHow Realtors Can Force the Sale of Co-Owned Property

Can Realtors assist their clients in selling a co-owned property?

As a Realtor, you may have come across situations in which a disagreeable co-owner disrupts an otherwise easy sale. Your client may have his or her heart set on selling the home but is unable to do so without the signature of the uncooperative co-owner. Or, perhaps one co-owner wants more of the proceeds than the other co-owner is willing to agree upon. In other situations, one co-owner claims they will never agree to a sale unless the Realtor can obtain an unreasonably high price for the property that no buyer will pay. Either way, when one co-owner decides to sell the property but the other co-owner refuses, this creates complications for Realtors. How can a Realtor assist a client whose co-owner refuses to sell a home?

The answer lies in the judicial system. A partition action allows a judge to sign in place of all co-owners, which includes the belligerent co-owner, thereby forcing the sale of the property.

Your co-owner client might be asking whether the court is likely to grant the partition. As the leading treatise on California real estate law, Miller & Starr, explains under the heading “Absolute right to partition,” “each cotenant has an ‘absolute’ right to partition the common property.” Right of partition—In general, 4 Cal. Real Est. § 11:14 (4th ed.). One court 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.

Steps to selling jointly owned property in California

If you are looking to assist your client in selling co-owned property, there are 3 major steps to take in the process:

  1. Set up a conference call between your co-owner client and Talkov Law, where the focus of our practice is California partition law
  2. Talkov Law will draft and file the partition action complaint, record a lis pendens, and thus initiate the partition lawsuit
  3. Talkov Law will appoint a partition referee who will then appoint a Realtor to sell the property

How does a partition referee appoint a California real estate agent?

The referee will draft a referee’s report that usually recommends the property be sold at public auction. Then, a Realtor will be hired to market and sell a property through all of the typical channels. [1]Cal Code Civ Proc 873.520 Often times, the Realtor can work with the plaintiff’s attorney to hire a partition referee who will in turn strongly consider the Realtor who is already familiar with the property as the listing agent. Sometimes, the Realtor can even be appointed as the referee and listing agent.

References


Is There a Statute of Limitations on a Partition Action?

Some co-owners in California wonder if there are any limitations on the time to file a partition action. For example, suppose a co-owner moved out of a property 20 years ago and never paid the taxes. Does that mean that they are no longer a co-owner? As explained below, co-owners do not lose their status ... Read...

Is there a statute of limitations on a partition actionIs there a statute of limitations on a partition action

Some co-owners in California wonder if there are any limitations on the time to file a partition action. For example, suppose a co-owner moved out of a property 20 years ago and never paid the taxes. Does that mean that they are no longer a co-owner? As explained below, co-owners do not lose their status as co-owners by the passage of time.

Right to Partition is Absolute in California

In a partition action, it has become common knowledge that a partition is absolute. Miller & Starr, the leading treatise on California real estate law, has a heading entitled: “Absolute right to partition” and 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.). One court 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.

Statute of Limitations in a Partition Action (California)

A statute of limitations is a defined time limit in which a lawsuit can be filed. Because the time limit varies depending on the type of case being filed, we sometimes receive questions about the statute of limitations for a partition action. The law is that: “Because of this absolute right, ‘[t]he statute of limitations never bars relief between tenants in common in an action of partition.'” Kaut v. Kelsey (Cal. Ct. App., Feb. 7, 2014, No. A136094) 2014 WL 495497, at *4 (quoting Adams v. Hopkins (1904) 144 Cal. 19, 27). In other words, there is no statute of limitations in a partition action because the right to partition is absolute. A co-owner may bring an action for partition at any point within the co-ownership, no matter how long this person has been a co-owner.

Offsets for Mortgage, Taxes, and Insurance

Some co-owners will try to argue that the out-of-possession co-owner’s equity in the property should be diminished by their failure to pay the mortgage, taxes, repairs, expenses, insurance and other holding costs, known in the law of partition actions as partition offsets. Unfortunately for co-owners in possession, the co-owner out of possession can charge the co-owner in possession with the rental value of to defeat claims of paying for monthly expenses. See Hunter v. Schultz (1966) 240 Cal.App. 2d 24, 30–31. Usually, the cost of the mortgage, taxes, and insurance is very close to the rental value of a property, meaning this is usually not much of a hurdle for co-owners out of possession when filing a partition action.

Contact an Experienced Partition Attorney in California

If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. Our experienced partition lawyers have years of experience ending co-ownership disputes and can help you unlock the equity in your property. For a free, 15 minute consultation with an experienced partition attorney at Talkov Law, call (844) 4-TALKOV (825568) or fill out a contact form online.


Code of Civil Procedure 874.320 CCP – Court ordered open-market sale; sealed bids; auction (Uniform Partition of Heirs Property Act)

California Code of Civil Procedure 874.320 the California partition statute that explains the details of how a court will sell a property under the California Uniform Partition of Heirs Property Act. The statute states the following: (a) If the court orders a sale of heirs property, the sale shall be an open-market sale unless the court finds ... Read...

Code of Civil Procedure 874.320 Court Ordered Open-Market Sale; Sealed Bids; AuctionCode of Civil Procedure 874.320 Court Ordered Open-Market Sale; Sealed Bids; Auction

California Code of Civil Procedure 874.320 the California partition statute that explains the details of how a court will sell a property under the California Uniform Partition of Heirs Property Act. The statute states the following:

(a) If the court orders a sale of heirs property, the sale shall be an open-market sale unless the court finds that a sale by sealed bids or an auction would be more economically advantageous and in the best interest of the cotenants as a group.
(b) If the court orders an open-market sale and the parties, not later than 10 days after the entry of the order, agree on a real estate broker licensed in the State of California to offer the property for sale, the court shall appoint the broker and establish a reasonable commission. If the parties do not agree on a broker, the court shall appoint a disinterested real estate broker licensed in the State of California to offer the property for sale and shall establish a reasonable commission. The broker shall offer the property for sale in a commercially reasonable manner at a price no lower than the determination of value and on the terms and conditions established by the court.
(c) If the broker appointed under subdivision (b) obtains within a reasonable time an offer to purchase the property for at least the determination of value, the following requirements apply:
(1) The broker shall comply with the reporting requirements in Section 874.321.
(2) The sale shall be completed in accordance with state law.
(d) If the broker appointed under subdivision (b) does not obtain an offer to purchase the property for at least the determination of value within a reasonable time, the court, after a hearing, may do any of the following:
(1) Approve the highest outstanding offer, if any.
(2) Redetermine the value of the property and order that the property continue to be offered for an additional time.
(3) Order that the property be sold by sealed bids or at an auction.
(e) If the court orders a sale by sealed bids or an auction, the court shall set terms and conditions of the sale. If the court orders an auction, the auction shall be conducted under Chapter 6 (commencing with Section 873.510).
(f) If a purchaser is entitled to a share of the proceeds of the sale, the purchaser is entitled to a credit against the price in an amount equal to the purchaser’s share of the proceeds.
Code of Civil Procedure 874.320
The statute specifies how an open-market sale will be conducted as well as specifying how a real estate broker will be appointed. Ordinarily, under a normal partition action, a partition referee would be appointed under California Code of Civil Procedure 873.010(a), which states: “The court shall appoint a referee to divide or sell the property as ordered by the court.” However, under the Uniform Partition of Heirs Property Act, co-owners may choose a broker, instead of a partition referee, to offer the property for sale. Indeed, a broker, rather than a partition referee, is able to offer the property for sale. This allows a far larger pool of people to be able to market the property for sale.

Contact an Experienced Partition Attorney in California

If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. Our experienced partition lawyers have years of experience ending co-ownership disputes and can help you unlock the equity in your property. For a free, 15 minute consultation with an experienced partition attorney at Talkov Law, call (844) 4-TALKOV (825568) or fill out a contact form online.


Who Pays for a Partition Action?

Who is responsible for paying for a partition action in California? As experienced partition attorneys, one of the most common questions we receive is who will pay for legal services related to the partition action. This can include attorney’s fees, filing and court fees, fees associated with fixing up the property in preparation for sale, ... Read...

Who Pays for a Partition Action in CaliforniaWho Pays for a Partition Action in California

Who is responsible for paying for a partition action in California?

As experienced partition attorneys, one of the most common questions we receive is who will pay for legal services related to the partition action. This can include attorney’s fees, filing and court fees, fees associated with fixing up the property in preparation for sale, and more. Many of our clients call initially hoping to have the opposing party cover some or all of these costs. There are a few important factors to consider when evaluating who is responsible for paying for a partition action.

In the United States, each party typically pays for their own attorney’s fees (known as the “American Rule”). However, California partition law allows for an exception to this rule, stating that “the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.” California Code of Civil Procedure 874.040. Indeed, the court may award “reasonable attorney’s fees incurred or paid by a party for the common benefit.” California Code of Civil Procedure 874.010(a).

An experienced partition attorney understands how to keep attorney’s fees, and the overall cost of a partition action, reasonable for all parties involved.

Is it worth it to insist the other party pay for your partition attorney’s fees?

While it may feel unfair to pay for a partition action out of pocket when your co-owner is the one who is in the wrong, it may be a relatively small price to pay in exchange for expediting the partition proceedings. The time, money, and energy it takes to fight over a few thousand dollars (the cost of a typical partition action is usually around $8,000) may very well not be worth the fight. With the median value of a home in California above $750,000, a few thousand dollars in attorney’s fees pales in comparison to the hundreds of thousands of dollars in equity that each co-owner may be entitled to.

Imagine the following scenario: you inherit a home worth $800,000 with your brother. Your parents paid off the home, and, aside from a few cosmetic issues, the house is mostly in good shape. Your brother lives in the home and both refuses to keep the house in good shape and is also being completely unreasonable about selling it. You don’t really want to spend $8,000 on attorney’s fees to get the home sold, but the $400,000 in equity that you are entitled to is extremely tempting. Receiving a net $392,000 (total equity – attorney’s fees) compared to receiving nothing and watching the house fall into further disrepair is undoubtedly worth it to many co-owners.

The value of ending a toxic co-ownership relationship, receiving your equity, and moving on with your life likely outweighs any monetary benefit that may be received by pursuing reimbursements for attorney’s fees. Talkov Law’s partition attorneys can walk you through the pros and cons of pursuing costs associated with the partition action.

Contact a Partiton Lawyer Today

For more information on ending a co-ownership relationship, contact the experienced California partition lawyers at Talkov Law by calling (844) 4-TALKOV (825568) or contacting us online.


Partition of Real Property Act – California – The Ultimate Guide (Formerly known as the Uniform Partition of Heirs Property Act)

What is the Partition of Real Property Act (Formerly Known as the Uniform Partition of Heirs Property Act (UPHPA)) in California? The Partition of Real Property Act is a new bill that will go into effect on January 1, 2023 which replaces the Uniform Partition of Heirs Property Act. The Act allows for added opportunities ... Read...

California - Uniform Partition of Heirs Property ActCalifornia - Uniform Partition of Heirs Property Act

What is the Partition of Real Property Act (Formerly Known as the Uniform Partition of Heirs Property Act (UPHPA)) in California?

The Partition of Real Property Act is a new bill that will go into effect on January 1, 2023 which replaces the Uniform Partition of Heirs Property Act. The Act allows for added opportunities for non-partitioning parties to buy out partitioning parties’ interest in a property through partition by appraisal. Previously, the Uniform Partition of Heirs Property Act only allowed non-partitioning co-owners of heirs property, which is inherited property as defined below, to retain their share of an inherited property by ensuring that they have the necessary due process to prevent the forced sale of the property. The updated Partition of Real Property Act makes it easier than ever to solve co-ownership disputes between co-owners of property through a California partition action.

The bottom line is that the Partition of Real Property Act allows co-owners of property a much easier way to buy out their co-owners, expanding even further upon the Uniform Partition of Heirs Property Act. Owners of property that is resided in by their co-owner now have a nicer way to ask that their co-owners to buy them out or move on so that everyone can obtain their equity. The Partition of Real Property Act in California accomplishes these goals by forcing a partition by appraisal where it would otherwise not be allowed.

When Does the Partition of Real Property Act Go into Effect?

Governor Gavin Newsom signed Assembly Bill No. 2245 in July 2022. The bill will apply to any partition actions filed after January 1, 2023. The bill also expands the Uniform Partition of Heirs Property Act “to apply to any real property held in tenancy in common where there is no agreement in a record binding all the cotenants which governs the partition of the property.” Notably, the Partition of Real Property Act removes the condition under the UPHPA requiring the property to be heirs property. This expands the scope of partition actions far beyond those included in the UPHPA.

When Did the Uniform Partition of Heirs Property Act in California Go into Effect?

Uniform Partition of Heirs Property Act (UPHPA) went into effect on January 1, 2022. California Governor Gavin Newsom signed Assembly Bill No. 633 on July 2021, which added the UPHPA to the California Partition Statutes in the California Code of Civil Procedure. California now joins many other states that have already adopted the UPHPA, including New York, Texas, Illinois, and 13 others. The act governs partition actions filed on or after January 1, 2022 involving heirs property as defined under California Code of Civil Procedure 874.313.

What is the Purpose of the Partition of Real Property Act in California?

The predecessor of the Partition of Real Property Act, the UPHPA, “preserves the right of a co-tenant to sell his or her interest in inherited real estate, while ensuring that the other co-tenants will have the necessary due process to prevent a forced sale: notice, appraisal, and right of first refusal.” [1]Nat’l Conf. of Comm’rs on Uniform State Laws, The Uniform Partition of Heirs Property Act – A Summary, 2010. Even further, the Partition of Real Property Act seeks to “expand the scope of the Uniform Partition of Heirs Property Act to apply to any real property held in tenancy in common where there is no agreement in a record binding all the cotenants which governs the partition of the property.” [2]CA LEGIS 82 (2022), 2022 Cal. Legis. Serv. Ch. 82 (A.B. 2245) The act aims to prevent dispossession of property by way of a forced sale. For many, property is their most valuable asset. Being forced to sell this asset can potentially negatively impact those who co-own the property.

Partition of Real Property Act, previously known as the California Uniform Partition of Heirs Property Act
California Uniform Partition of Heirs Property Act, and later the Partition of Real Property Act, allows for the preservation of generational wealth and familial relationships

For example, perhaps one co-owner has sold their interest to a real estate investor. As a co-owner, the investor can now force the sale of the property below fair market value, just to buy it back in full. The non-partitioning co-owners are now left without their inherited property and with little cash to show for its sale, while the real estate investor walks away with the heirs property.

According to the author of the Act, this issue is unfortunately common in lower to middle class individuals, especially rural African-American families, who die intestate or who do not have the resources to create sophisticated wills or estate plans. State intestacy laws and less sophisticated estate planning documents will name heirs as tenants in common. Any tenant in common who has no need or desire to maintain ownership in the property may file for a partition action. However, under the UPHPA in California, co-owners who wish to retain their ownership in the inherited property have more opportunity to do so, thus preserving generational property wealth that may be otherwise lost in a partition by sale.

What are the requirements for the Partition of Real Property Act in California?

In addition to the requirement that the partition action must have been filed on or after January 1, 2023 in California, the Partition of Real Property Act applies to: “any real property held in tenancy in common where there is no agreement in a record binding all the cotenants which governs the partition of the property.” [3]CA LEGIS 82 (2022), 2022 Cal. Legis. Serv. Ch. 82 (A.B. 2245). That’s it!

What are the Requirements for the UPHPA in California?

By contract, the UPHPA had stricter specifications. In addition to the requirement that the partition action must have been filed on or after January 1, 2022, the Uniform Partition of Heirs Property Act in California only applies to: 1) heirs property 2) in which there is no written agreement governing partition among the owners. If these conditions are met, the UPHPA will afford protections for non-partitioning co-owners of heirs property.[4]California Code of Civil Procedure 874.313

What is Heirs Property under California Law?

Contrary to what some people may believe, the definition of “heirs property” under the Uniform Partition of Heirs Property Act in California applies to more than just property that is inherited after death by “heirs” as that term is commonly understood. Rather, “heirs property” is defined in Code of Civil Procedure Section 874.312(e) as follows:

“Heirs property” means real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action:

(1) There is no agreement in a record binding all the cotenants which governs the partition of the property.

(2) One or more of the cotenants acquired title from a relative, whether living or deceased.

(3) Any of the following applies:

(A) Twenty percent or more of the interests are held by cotenants who are relatives.

(B) Twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased.

(C) Twenty percent or more of the cotenants are relatives.

This requirement that one or more of the co-owners acquired title from a “relative” includes relatives that are “living,” meaning the Uniform Partition of Heirs Property Act in California even applies if you purchase a property from your living parent, cousin, or otherwise. In other words, the “heirs” portion of the act is a misnomer as the act really applies to any property acquired from a relative. The only exception would be if those who meet this qualification are less than 20 percent of the ownership. Accordingly, the Act should assist many inter-family disputes.

Uniform Partition of Heirs Property Act - California

What is the Partition Action Process under the Uniform Partition of Heirs Property Act in California?

Normally, in a partition action in California, a co-owner of a property has the absolute right to force the sale of the jointly owned property. However, under the UPHPA: “If a cotenant requests partition by sale, the bill would give cotenants who did not request the partition the option to buy all of the interests of the cotenants that requested partition by sale, as specified.”[5]Assem. Bill 633, 2021, ch. 119, (Ca. 2022) In other words, this creates a right of first refusal for non-partitioning parties. The default procedure for co-owners of heirs property requesting a partition by sale is now as follows:

  • The court will determine whether the property is heirs property

The partition process under the Uniform Partition of Heirs Property Act creates added opportunities for non-partitioning parties to maintain an interest in the property they have inherited.

What if the Non-Partitioning Parties Do Not Purchase the Interests of the Partitioning Parties in California?

If the non-partitioning parties are unable to or do not want to exercise their right to purchase the interests of the partitioning parties, the court will then partition the property in kind or by sale (depending on what is appropriate) just as it would for non heirs property.

Can you Appoint a Referee Under the UPHPA?

A partition referee may be appointed under California Code of Civil Procedure 874.315 pursuant to California Code of Civil Procedure 873.010. These statutes allow a referee, who is a neutral, third party, to oversee the equitable sale or division of a property. However, it is possible that defendants can raise appointing a referee under the UPHPA as an issue and they may ask for an appraisal.

Additional Appraisal Procedures Under the UPHPA in California

Additionally, “In an action for partition of heirs property, the court may apportion the costs of partition, including an appraisal fee, pursuant to Section 874.040, except that the court shall not apportion the costs of partition to any party that opposes the partition unless doing so is equitable and consistent with the purposes of this chapter.” [6]California Code of Civil Procedure 874.321.5 Indeed, non-partitioning parties will not bear the costs of partition unless the court deems it equitable for them to do so.

Even further, “The bill would permit the court to apportion the costs of partition among the parties in proportion to their interests, but would prohibit the apportionment of costs among parties that oppose the partition, except as specified.” [7]Assem. Bill 633, 2021, ch. 119, (Ca. 2022) Put another way, costs will be apportioned among partitioning parties in accordance with their ownership percentages.

Contact an Experienced Partition Attorney in California

If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. Our experienced partition lawyers have years of experience ending co-ownership disputes and can help you unlock the equity in your property. For a free, 15 minute consultation with an experienced partition attorney at Talkov Law, call (844) 4-TALKOV (825568) or fill out a contact form online.


Code of Civil Procedure 873.770 CCP – Taking Setoff from Party Purchaser (Partition Actions)

California Code of Civil Procedure 873.770 is the California partition statute that explains how the partition referee will distribute proceeds of sale when the purchaser is also a party entitled to some of the proceeds of sale, i.e., when credit bidding may be available. The statute provides that: Where the purchaser is a party or ... Read...

Code of Civil Procedure 873.770 CCP – Taking Setoff from Party Purchaser (Partition Actions)Code of Civil Procedure 873.770 CCP – Taking Setoff from Party Purchaser (Partition Actions)

California Code of Civil Procedure 873.770 is the California partition statute that explains how the partition referee will distribute proceeds of sale when the purchaser is also a party entitled to some of the proceeds of sale, i.e., when credit bidding may be available. The statute provides that:

Where the purchaser is a party or lienholder entitled to a share of the proceeds of sale, the referee may:
(a) Take the purchaser’s receipt for so much of the proceeds of sale as belongs to the purchaser.
(b) Take security, or other arrangement satisfactory to the referee, for payment of amounts which are or may become due from the purchaser on account of the expenses of sale, general costs of the action, and costs of the reference.

In other words, this statute suggests that credit bidding a co-owner’s equity in a partition by sale may be possible to buy out a co-owner. However, the issue becomes whether there is a determination at the time of the partition sale of the amount that will be paid to the purchasing co-owner.

Contact an Experienced Partition Attorney in California

If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. Our experienced partition lawyers have years of experience ending co-ownership disputes and can help you unlock the equity in your property. For a free, 15 minute consultation with an experienced partition attorney at Talkov Law, call (844) 4-TALKOV (825568) or fill out a contact form online.


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