If two or more parties have interest in a piece of real property, any of the interested parties may bring forth an action to “partition” the property. An action to partition settles any differing interests that arise between interested parties. For further procedure for Partitions see California Code of Civil Procedures (CCP Sections 872.010, Et Seq.)

Types of Relief that come from a Partition:

The court will resolve the issue by ordering the sale of the property in which the parties will receive their respective shares of the proceeds (e.g. if two parties each own half of the real property the proceeds from the sale will be divided 50%/50%, subject to any credits or debits—which may be warranted for a variety of reasons). Alternatively, another type of relief the court may order is physically dividing the property. If the property can be physically divided, each party will receive their respective share, but this is rare, and almost always the court must order a sale of the property.

What is a Partition Referee?

The court will resolve the issue by ordering the sale of the property in which the parties will receive their respective shares of the proceeds (e.g. if two parties each own half of the real property the proceeds from the sale will be divided 50%/50%, subject to any credits or debits—which may be warranted for a variety of reasons). Alternatively, another type of relief the court may order is physically dividing the property. If the property can be physically divided, each party will receive their respective share, but this is rare, and almost always the court must order a sale of the property.

A Partition Referee is a court-appointed neutral third-party tasked for the purpose of facilitating the Partition of the property (California Code of Civil Procedure §873.010). The Referee’s duties and power will set forth defined in a court order that determines the property should be should and directing the Referee to manage the sale and disbursement of the proceeds (the “Interlocutory Order” or “Interlocutory Judgment”).

When the court’s Interlocutory Judgement orders a sale of a property, the Partition Referee shall carry out the sale that is most favorable to the parties. The California Code of Civil Procedures requires the Referee to provide the court with a report upon making the sale. Per CCP § 873.710, the report must include:

• A description of the property sold to each purchaser.
• The name of the purchaser.
• The sale price.
• The terms and conditions of the sale and the security, if any, taken.
• Any amounts payable to lienholders.
• A statement as to contractual or other arrangements or conditions as to agents’ commissions.
• Any determination and recommendation as to opening and closing public and private ways, roads, streets, and easements.
• Other material facts relevant to the sale and the confirmation proceeding.

The California Code of Civil Procedures § 873.110 allows the court to authorize the Referee to:

• Employ the services and expenses of surveyors, engineers, appraisers, attorneys, real estate brokers, auctioneers, and others.
• Allow and direct payment of or reject claims under such contracts.
• Provide for the date of commencement of any lien provided by law or contract for such claims.

Division of Profit from Partition Sale

Per CCP § 873.820, “the proceeds of sale for any property sold shall be applied in the following order:

• Payment of the expenses of sale.
• Payment of the other costs of partition in whole or in part or to secure any cost of partition later allowed.
• Payment of any liens on the property in their order of priority except liens which under the terms of sale are to remain on the property.
• Distribution of the residue among the parties in proportion to their shares as determined by the court.”

CCP § 874.010 then defines the “costs of partition” as including:

• Reasonable attorney’s fees incurred or paid by a party for the common benefit.
• The fee and expenses of the referee.
• The compensation provided by contract for services of a surveyor or other person employed by the referee in the action.
• The reasonable costs of a title report procured pursuant to Section 872.220 with interest thereon at the legal rate from the time of payment or, if paid before commencement of the action, from the time of commencement of the action.
• Other disbursements or expenses determined by the court to have been incurred or paid for the common benefit.

For further information on the disbursement of partition sale profits, click here.

Physical Division of Property

If the Interlocutory Judgement orders the Property to be divided, the Partition Referee shall divide the property and allot the several portions to the parties, quality and quantity relatively considered, according to their interests in the property as determined in the interlocutory judgment (CCP § 873.210). Upon dividing the property, the Referee shall file with the court a report of the proceedings and provide each party with a written notice. However, as mentioned, this is rare as property cannot typically be divided physically in a manner that would be equitable for all parties.

How Long Does a Partition Take?

The time it takes to complete a Partition Action is roughly one to two years, depending on the complexity of the issues, and whether the parties settle or go to trial.