Partition Actions

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Partition Attorneys in southern california

The attorneys at Arcstone Law are experienced partition litigation attorneys who serve our client’s needs throughout Southern California. Whether your case or legal dispute is in Orange County, Ventura, the Inland Empire or Los Angeles County, our Attorneys are ready to help you today.

Call us now: (855) 219-3333

When there are two or more owners of Real Property each party retains the right to force a sale of the property. Oftentimes the parties will have issues such as the management of the property, distributing rents collected, one co-owner living in the property or if one co-owner just wants to sell their interest and move on. A party may be able to file a partition lawsuit to obtain a court order authorizing the sale of the entire property and distribution of the sales proceeds.

The first thing to do is to check how title is held.  If title to the property is in “Joint Tenancy” or “Tenants In Common,” then any JT or TIC co-owner has an absolute right to file a partition action.  One advantage of filing the partition lawsuit – as opposed to waiting for another co-owner to file it – is that the Plaintiff normally can recover the money they spent hiring their attorneys.  And if you have made more payments than the other co-owner(s) and/or the other co-owner has collected rent but not paid you your share, then we highly recommend filing a partition lawsuit.

A judge will allow all parties that have an interest in the property to make any and all arguments related to how the proceeds of the sale of the property should be distributed.  This is why you need to hire an experienced Real Estate Law firm who can make all reimbursement and set-off arguments on your behalf.  Partition actions are not as simple as “50% for me and 50% for you.”  Usually one person has spent more money paying taxes, mortgage(s) and utilities than the other(s), and/or one person has collected more rent than the other(s), and/or one has lived in the property longer.  The court will take all of this into consideration in deciding how the proceeds from the sale of the property are to be divided.  In order to win the “offsets” that you deserve, you’ll need to provide proof of your expenses, payments made and repairs done and show any rents collected but not distributed to you.  Those legal arguments need to be made within the Partition Lawsuit, as any arguments not made will not be allowed to be made in the future after the case is over.

Partition Actions are often filed along with an argument for Quiet Title of the property.

 

Quiet Title Actions In California

A quiet title lawsuit can resolve many types of Real Estate-related disputes such as:

  • An encumbrance or lien that prevents the sale of a property to a third party,
  • An ownership interest acquired by fraud or coercion,
  • An illegal lien recorded on a property,
  • A wrongful transfer of Title to another party,
  • Ownership claims of a cohabitating couple,
  • Conflicting property claims of the beneficiaries of an estate,
  • Taking Title back and/or taking someone off Title who was wrongfully placed onto Title. 

Contact Us About Your Case

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PARTITION ACTIONS IN CALIFORNIA

By Cynthia Velasco, Esq. 

Per CCP § 872, Partition matters must show the following:

  1. Determination of Interests of Parties;
  2. Determination of Rights to Partition; and
  3. Determination of Manner of Partition

Every owner of real property has an absolute right to force the sale of real property.  There is no defense to a Partition cause of action.

The Partition Fact Pattern

Partition cases include a very basic fact pattern: more than one person is on title and co-ownership of the Subject Property is no longer feasible.  However, the Partition fact pattern is often not as straight forward.

Typical fact patterns for Partition cases:

On title and on the loan

This is the best type of case.  Client is both on title and on the loan.  This means that client can absolutely force a sale of the property and be released from both the loan and the title.  

On title, but never paid anything towards the SP

An additional common fact pattern is one where a person’s credit was used to help another purchase the property, but that person has never paid anything towards the property. See below for definition of a straw buyer.

On title, but not on the loan

Client is in a great position if they are on title but not on the loan.  This means that they have an absolute right to force a sale of the property and may not be responsible for the loan on the property because they are not the borrower. Usually occurs when the parties purchased a property together, entered into an agreement wherein one person removed themselves from title but remained on the loan.

On the loan and not on title

Another basic fact pattern is when a person is only on the loan but not on title.  This usually occurs when the parties purchased a property together, entered into an agreement wherein one person removed themselves from title but remained on the loan.  The borrower’s credit is now tied up in this property and the title owner refuses to refinance or cannot qualify to refinance. See below for possible settlement options.

Joint Tenant vs. Tenant in Common

Either Joint Tenants or Tenants in Common can file a Partition cause of action as both have an absolute right to force a sale of the property.  Since we never know what can happen in the middle of litigation, it is always best to break up the joint tenancy before filing the lawsuit.  The reason is that our client can pass away in the middle of litigation and if that happens the Partition lawsuit becomes moot (joint tenancy has a right of survivorship).

Accounting as a cause of action

Always include an accounting cause of action in a Partition lawsuit in order to account for repairs, improvements, and general offsets that the parties would be entitled to.  Failure to include an accounting cause of action does not necessarily waive the accounting, but we want to make sure we plead it in our Complaint.

Procedural aspects

LIS PENDENS- Always record a Lis Pendens when filing a Complaint.  Failure to record a Lis Pendens exposes the property to unwanted liens and sales.

MOTION FOR SUMMARY ADJUDICATION –  If there are no issues with title, meaning, the client is definitely on title and definitely contributed towards the property but the other side refuses to agree to a sale, file a Motion for Summary Adjudication on the Partition cause of action per CCP §437c.*

*See Lidia Jantzis or Moises Lopez

After we prevail on the Motion for Adjudication, will have to file an interlocutory judgment and will be assigned a referee to list the property shortly thereafter. 

Essential Evidence

You will need the following:
  • Title
  • DOT
  • Receipts for repairs and/or improvements
  • Escrow docs (for down payment)
  • Lease Agreements, if any
  • Written agreements, if any

Attorney’s Fees

The Plaintiff in a Partition lawsuit is entitled to 50% of their attorney’s fees per CCP § 874. The attorney’s fees are taken off the sale proceeds before making any other distributions, which means that our client’s share is technically deducted by 50% of the attorneys’ fees as well.  

How to calculate offsets

Every owner is entitled to their ownership percentage of the sale proceeds/equity in the real property, plus/minus offsets, and 50% of the attorney’s fees.  However, the parties are only entitled to the offsets if the expense is evidenced by a receipt.  

Typical offsets include mortgage payments, down payment, property taxes, property insurance, repairs, and improvements.  

If the property is purely an income property then the rents collected should be enough to cover the property expenses and any excess is to be paid amongst the owners unless an agreement to the contrary exists.  If the property is occupied by one of the owners then the calculation becomes more complicated.

If the property has a mortgage, then the occupying owner is responsible to pay the entire mortgage amount.  If the property does not have a mortgage and one of the owners lives in the property, they do NOT have to pay rent to the co-owner.

**Note that the above only applies if the parties do not have a contract to the contrary in which case the contract governs.

Get Legal Help Today

If you believe that filing a partition or quiet title lawsuit might help you, then make sure to contact a Real Estate Attorney with experience. Here at Arcstone Law, with offices conveniently throughout Southern California, we have real estate attorneys with extensive experience in partition and quiet title actions.  We fight for you to make sure that your legal rights are protected.

Contact us today to schedule your attorney consultation.

 

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Arcstone Law was established as a Foreclosure Defense Law Firm helping homeowners sue the banks after the mortgage meltdown of 2008. During that time the efforts of our lawyers were recognized and published by the State of California as precedence for other attorneys to rely on. Today our team of lawyers have grown, and our practice areas now include contract law, purchase/sales, quiet title litigation, partition actions, bankruptcy, eviction law, probate, divorce law (where Real Property is at issue) estate planning, business law and personal injury. 

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