Partition by Sale vs. Partition in Kind: What You Need to Know

Partition actions generally follow two main paths:

– Partition by Sale – The property is sold, and the proceeds are divided among co-owners.

– Partition in Kind – The property is physically divided among the owners if feasible.

How Courts Determine the Type of Partition

– If the property is a single-family home, partition by sale is common.

– If the property is large acreage, partition in kind may be possible.

– Courts consider whether one method is more equitable than the other.

How to Force the Sale of a Co-Owned Property in California

If co-owners cannot agree on selling a property, California law allows one owner to file a partition by sale action.

Steps to File a Partition by Sale:

1. Attempt Settlement – Before litigation, co-owners may try to reach a voluntary agreement.
2. File a Lawsuit – The co-owner seeking sale files a partition complaint in court.
3. Court Appoints a Referee – If necessary, a referee handles the sale process.
4. Property Sale – The property is sold through court-supervised proceedings.
5. Proceeds Distributed – The court determines how to distribute sale proceeds fairly.

What Happens When a Co-Owner Refuses to Sell?

If a co-owner refuses to sell, the other owners can force a sale through a partition action.

Options When a Co-Owner Won’t Sell:

– Negotiate a Buyout – Offering to purchase the refusing owner’s share.

– Seek Mediation – Attempting to resolve disputes without court intervention.

– File a Partition Lawsuit – If negotiation fails, legal action may be required.

Costs and Attorney Fees in a Partition Action

Who Pays for a Partition Action?

– Attorney fees and court costs are typically shared among co-owners.

– Under California Code of Civil Procedure Section 874.020(b), costs are allocated based on each party’s ownership share.

– A partition referee may also require fees, which are deducted from the sale proceeds.

How a Partition Referee is Appointed and Their Role

Role of a Partition Referee:

– Oversee the sale or division of the property.

– Determine fair market value and manage transactions.

– Ensure all co-owners receive their fair share of the proceeds.

Can You Buy Out a Co-Owner Instead of Filing a Partition Action?

Steps to a Buyout Agreement:

1. Property Appraisal – Determine the market value.
2. Negotiation – Agree on terms and payment structure.
3. Legal Documentation – Draft a buyout agreement to formalize the transaction.

A buyout is often faster and cheaper than a partition lawsuit.