Are you having issues with a fellow landowner about how to manage the property? Do you want to sell and the other wants to keep the property?
A partition action and real estate attorney may be your answer.
WHAT IS A PARTITION ACTION?
A partition action is the court process for the division of real property between two or more co-owners. Partition actions are specific to co-ownerships when the property is held by multiple owners that are joint tenants or tenants-in-common.
Both a joint tenancy and tenancy-in-common provide each owner with a right to own the entire property or parcel of land. As such, a co-owner is not permitted to intervene with a respective co-owner’s ability to access, utilize, maintain, or dispose any part of the property or parcel of land. Put simply, each co-owner has full access and control over every piece of the property or parcel of land, as if it was owned individually.
Accordingly, when co-owners are continuously unable to agree on the maintenance, improvement, or disposal of the property, a co-owner will seek to sever this co-ownership, resulting in a petition for partition.
Here’s an example: Boyfriend and Girlfriend purchase a single family residence as joint tenants. Boyfriend and Girlfriend break-up and are no longer able to engage in amicable and constructive discussion regarding the maintenance, improvement, or disposal of the property. Boyfriend moves out of the property and decides to sell. Girlfriend continues to reside in the property and wants to keep it.
At this point, it is clear that Boyfriend and Girlfriend have an irreparable breakdown of a relationship and are no longer able to continue managing the property together, as joint tenants.
WHAT ARE THE TYPES OF PARTITION?
In California, the most common methods of partition are: (1) Partition by Physical Division and (2) Partition by Sale.
A Partition by Physical Division, often referred to as a Partition in Kind, requires the court to divide the land by its proportional value. The court will literally split the parcel of land into separate plots of nearly equal value, so that each co-owner may maintain their plot individually. A Partition by Physical Division typically applies to rural, or undeveloped parcels of land. In general, courts will prefer physical division over a Partition by Sale because it prevents a forced sale of the property, against a co-owner’s will.
A Partition by Sale, which is becoming increasingly popular, involves the sale of the property, in which the court will provide each co-owner a share of the proceeds. It should be noted that courts will divide the proceeds of the sale equitably (fairly) – not equally. The court will not automatically provide each co-owner with 50% of the proceeds upon the sale of the property. Rather, the court will determine equitable distribution based on how each co-owner contributed to relative expenditures, such as taxes, repairs, maintenance, and improvements. If one co-owner contributed approximately 75% and the other approximately 25% to relative expenditures, then the court may distribute the proceeds of the sale according to the according contributions.
In addition, a Partition by Sale usually will occur if the property at issue cannot physically (or equitably) be divided among the co-owners or if a Partition of Physical Division will result in substantial injury to any of the co-owners. The court must determine under the circumstances, that the sale and equitable division of the proceeds would be more equitable than the literal division of the property.
ARE THERE ANY RECOVERABLE COSTS, EXPENSES, OR REIMBURSEMENTS?
Yes! As stated above, the court will divide the land or proceeds from the sale equitably, which usually requires an accounting of all expenses, costs, and payments made by co-owners to adjust their respective rights. Such expenses include, but are not limited to, contributions you made to the mortgage, insurance, taxes, or improvements. If there were uneven contributions, then you may be entitled to a reimbursement from the other co-owner.
Let’s continue with the example from above: Boyfriend makes all mortgage, insurance, and taxes payments. Girlfriend did not contribute 50% to help pay these expenses. The court will order a reimbursement from Girlfriend to Boyfriend for the 50% that she was supposed to pay but did not.
If this is the case for you, it is important that you save any and all receipts, bank statements, or documentation supporting these payments. With this evidence, we can advocate to the judge that you are entitled to a reimbursement.
DO I REALLY NEED A REAL ESTATE ATTORNEY TO ASSIST WITH A PARTITION ACTION?
Yes! Partition Action in California are complex and require the assistance of a skilled real estate attorney to ensure your rights are properly advocated for, resulting in optimal outcomes. In the alternative, if you and your co-owner are amicable, our office has qualified attorneys to assist with mediation to provide a quick resolution. Contact Gomez & Simone, APLC at (855) 219-3333 today to speak with one of our experienced real estate attorneys.