Any owner can file a Partition action at any time, absent a waiver. The most common cases are among family members who co-own property without an ownership agreement; owners who were formerly in a romantic relationship, but not legally married; and business partners who did not properly document their co-ownership obligations.

There are three methods of Partition provided by state law: (1) Partition by Physical Division, (2) Partition by Sale, and (3) Partition by Appraisal.

A Partition action is a legal action filed in Court that names all parties who have or claim an interest in the subject property, including owners, lienholders, lenders, and holders of future estates. The action commences with the filing of a Partition complaint, which is filed and served on all named defendants. The Partition action then proceeds like a standard civil lawsuit, except there is no right to a jury trial on the issue of Partition. The Partition action proceeds as a court trial and a judge renders a decision on the determination of interests of the parties and the manner of Partition. The judge will also appoint a referee to make recommendations and oversee the Partition process.

Also known as “Partition in Kind,” a Partition by Physical Division requires the Court to divide the land by its proportional value. This method of Partition typically applies to properties involving acreage, such as rural properties or undeveloped land. A Court will not order a Partition by Physical Division if it would result in an owner receiving a portion of the land that is materially less than the share of the money which could be obtained through the sale of the land as a whole. A Court is also required to comply with the Subdivision Map Act, local ordinances, zoning ordinances, and a general plan for the area in which the property is located, which prevents owners from using the Partition remedy to subdivide their parcels of land without first complying with the statutory scheme for subdivision of property.

A Partition By Appraisal allows one or more owners to purchase the interest of the other owner(s) at a value assessed in a court-ordered appraisal. This method is available only if the interests of all parties are undisputed or have been adjudicated, and the parties agree in writing to proceed with a Partition by Appraisal.

Also known as “Partition in Kind,” a Partition by Physical Division requires the Court to divide the land by its proportional value. This method of Partition typically applies to properties involving acreage, such as rural properties or undeveloped land. A Court will not order a Partition by Physical Division if it would result in an owner receiving a portion of the land that is materially less than the share of the money which could be obtained through the sale of the land as a whole. A Court is also required to comply with the Subdivision Map Act, local ordinances, zoning ordinances, and a general plan for the area in which the property is located, which prevents owners from using the Partition remedy to subdivide their parcels of land without first complying with the statutory scheme for subdivision of property.

A Partition is generally a no-fault proceeding, meaning there are generally no defenses that an owner can raise. One exception is if the owners have waived their right to Partition. A waiver may be verbal, implied, or written. If the original owner were to grant property interests to other parties, such as children, who later seek a partition, the Court can take into account the original owner’s intentions in purchasing the property at the time the property was acquired.

A Partition action should be filed with the assistance of an experienced attorney. A Partition action typically involves the cost of a title report, legal fees and costs for handling the lawsuit through trial, and referee costs. An uncontested judgment for Partition could cost at least $25,000 in legal fees and costs. The amount of legal fees escalate when the Partition action is contested, or involves additional issues in dispute between the owner.

Yes, under California law, a party who files an action for Partition is entitled to recover a portion of his/her reasonable attorney fees and costs paid or incurred for services for the common benefit of the property.