Detailed Answer — Understanding and Pursuing a Partition Action in California
This section explains, step by step, how a co-owner can force the sale of real property in California when a co-owner refuses to agree. The explanation assumes no prior legal knowledge. This is a general guide only and not legal advice — consult a licensed California attorney for personal guidance.
What is a partition action?
A partition action is a court case in which a co-owner of real property asks a judge to divide the property or order its sale so that co-owners receive their respective shares. In California, any co-owner with a pro rata interest may bring a partition action. See California Code of Civil Procedure § 872.010 for the core authority allowing partition actions: CCP § 872.010.
Who can file and where to file
- Who may file: A tenant in common or joint tenant who owns an interest in the property. The person filing is usually called the plaintiff; other co-owners and interested lienholders are defendants.
- Where to file: File the action in the superior court for the county where the property is located.
Before you sue: practical steps to consider
- Gather proof of ownership: deeds, title report, property tax statements.
- Identify everyone with an ownership interest and all lienholders (mortgages, trust deeds, tax liens, judgment liens).
- Try negotiation first: send a written demand or offer to buyout the other co-owner or sell the property. Courts expect parties to try settlement before seeking costly litigation.
- Get a preliminary market value: obtain a broker price opinion or appraisal to understand likely proceeds and buyout numbers.
Filing the partition complaint — the basic procedure
Here are the typical procedural steps in California:
- Prepare a complaint for partition: The complaint identifies the property, describes each party’s interest, asks the court to partition the property (in kind or by sale), and requests appointment of a referee or commissioner to carry out the partition.
- Include all necessary parties: All co-owners and parties with recorded interests (mortgage holders, judgment creditors, etc.) must be named or properly joined so the court can bind them by its order.
- File the complaint and pay filing fees: File at the county superior court clerk where the property sits. Fee waivers may be available if you qualify.
- Serve the defendants: Deliver the complaint and summons according to the California Code of Civil Procedure so all defendants receive proper notice.
What the court can do — partition in kind vs. sale
California courts prefer partition in kind (physically dividing property) when practical. If the property cannot be fairly divided (housing typically cannot be split), the court will order partition by sale. The court may:
- Order partition in kind (if feasible).
- Order partition by sale and direct how the sale will proceed (private sale or public auction) and appoint a referee or commissioner to conduct sale details.
- Allocate net proceeds after paying mortgages, liens, costs, and commissions among owners based on their ownership percentages.
Appointing a referee or commissioner and sale process
The court commonly appoints a referee or commissioner to manage valuation, sale, and distribution. Typical steps include:
- Appraisal or broker listing to determine fair market value.
- Sale via open market or court-directed auction. The referee must follow court directions and statutory rules.
- Report to the court and request confirmation of sale and distribution of proceeds. The court confirms the sale if procedures were followed and the sale is fair.
How liens, mortgages, costs, and taxes are handled
Liens and mortgages generally survive a partition sale; they are paid from sale proceeds in priority order before co-owners receive their shares. The party(s) who benefit from a sale may also be responsible for costs: appraisal fees, escrow fees, broker commissions, referee fees, court costs, and attorney fees if the court awards them.
Timing and expenses
A partition action can take several months to well over a year depending on complexity, whether the parties dispute facts, and court scheduling. Expect costs for filing, service, appraisal, escrow, and any court-ordered commissions. If you and the other co-owner can settle (for example, a buyout), you can avoid most court costs and delay.
Options short of litigation
- Buyout: Offer to buy the sister’s share at fair market value.
- Sell cooperatively: List the property with a broker and split proceeds.
- Mediation: Use a neutral mediator to reach agreement without court.
What to expect in court and common outcomes
If you file and the court orders sale, the likely result is sale of the property with proceeds paying liens and costs and the net split according to ownership shares. If one co-owner claims exclusive possession or special equities (investments, improvements, or contributions toward mortgage or repairs), the court may account for those before dividing proceeds.
Practical checklist before filing
- Collect deeds, title report, mortgage statements, tax bills, and records of improvements or payments.
- Document attempts to negotiate or demand letters.
- Obtain an estimated appraisal or broker opinion.
- Identify all lienholders and outstanding debts on the property.
- Consult a real estate or civil litigation attorney to review risks, likely costs, and strategy.
Statutes and official resources
Key California authority allowing partition actions: Code of Civil Procedure § 872.010. For practical, court-level guidance and forms, visit the California Courts (Judicial Branch) self-help resources or contact your local superior court.
Important: This article provides a general explanation. It is not legal advice. For help specific to your situation, consult a licensed California attorney who can review your documents and represent you in court.
Helpful Hints
- Start by trying to negotiate a buyout or cooperative sale — it is almost always cheaper and faster than litigation.
- Get a professional appraisal or broker opinion before making offers or filing suit.
- Name all co-owners and lienholders in the complaint so the court can resolve everyone’s rights in one action.
- Be prepared for costs: court fees, appraisal, escrow, broker commissions, and referee fees are typical.
- If you need possession before sale (for example, to live in or protect the property), ask the court for temporary possession orders — but courts weigh such requests carefully.
- Document any payments you’ve made (mortgage, taxes, repairs); the court may credit those to your share.
- Ask about alternative dispute resolution (mediation) — many courts encourage or require it before trial.
- Consult an attorney early if complex issues exist: liens, outside creditors, multi-jurisdictional owners, or claims of unequal contributions or improvements.