How do co-owners initiate a partition action to divide or sell shared real property? — CA

Detailed Answer — How co-owners start a partition action in California

When two or more people co-own real property and cannot agree on what to do with it, any co-owner can ask a court to force either a physical division of the land (partition in kind) or a sale of the whole property with proceeds divided among owners (partition by sale). In California, partition actions are governed by the Code of Civil Procedure (partition statutes) and related case law. See California Code of Civil Procedure § 872.010 for who may bring an action: CCP § 872.010.

Typical, step-by-step process

1. Confirm your ownership and relationship to other owners. Determine whether you are tenants in common or joint tenants and gather title evidence (deed, title report, grant deed). Tenants in common have distinct shares and commonly bring partition actions; joint tenancy can often be severed as part of litigation.
2. Try resolving the dispute first. Courts expect co-owners to try negotiation, mediation, or buyout offers before filing. A written demand or settlement offer can be helpful evidence if court involvement becomes necessary.
3. Prepare a complaint for partition and file it in the county where the property is located. The complaint identifies the property (legal description), names all owners and recorded lienholders as defendants, describes each party’s claimed interest, and asks the court to partition in kind or, if partition in kind is impracticable, to order a sale.
4. Serve all co-owners and lienholders. Every person with a recorded interest (mortgage, tax lien, judgment lien) must be served so the court can determine rights and the order of distribution of sale proceeds.
5. Defendants answer and the court sets discovery or a hearing. Defendants can dispute ownership, claim offsets (improvements, rent, debts), or assert that partition in kind is feasible. The court will consider evidence including appraisals and feasibility studies.
6. Court determines whether partition in kind is practical. California law favors partition in kind when the property can be divided fairly without prejudice to the owners. If division would be impractical, inequitable, or would significantly reduce value, the court may order sale instead. (See the partition statutes and controlling cases for standards.)
7. If the court orders sale or division, it typically appoints a commissioner. A neutral court-appointed commissioner (or referee) arranges appraisal, divides parcels, or conducts sale, accounting for liens, costs, taxes, and expenses, and distributes net proceeds according to ownership shares and priorities.
8. Distribution and final judgment. After sale or division and after liens, costs, commissions, and any awarded credits are paid, the court issues a final judgment of partition directing distribution of remaining proceeds or title transfers.

Important legal points under California law

• Any co-owner may file. The basic right to bring a partition action is statutory; see CCP § 872.010.
• Partition in kind is preferred when feasible; sale is a fallback when division is impracticable or inequitable. The court assesses feasibility and fairness based on valuation, use, and the nature of the property.
• Recorded liens (mortgages, tax liens) attach to the property and are paid from sale proceeds according to priority before co-owners receive net proceeds. Unknown or unserved claimants may require additional steps to protect their interests.
• The court may award credits or offsets for contributions to mortgage payments, taxes, necessary repairs, or improvements — these alter final distributions.
• Practical timeline and costs: Partition actions can take many months to years, depending on disputes, title complexities, and whether an appeal follows. Costs include filing fees, attorney fees (if applicable), appraisal and commissioner fees, sale commissions, and repairs ordered to make property marketable.

Sample hypothetical (illustrates common issues)

Three siblings own a coastal duplex as tenants in common (equal shares). Two want to sell; one wants to keep his unit. After failed buyout negotiations, a sibling files a partition complaint in the county where the duplex is located. The court orders an appraisal and determines the building cannot be fairly split without harming value or wasting shared common areas, so it orders sale. A commissioner markets and sells the duplex, pays off two mortgages and property taxes, deducts sale expenses and the commissioner’s fee, and distributes the net proceeds equally to the siblings.

Where to find the statutes and more information

Primary statutory authority is in the California Code of Civil Procedure. Start with the partition provisions at CCP § 872.010: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=872.010&lawCode=CCP. For practical court procedures and forms, consult your county superior court’s civil filing information and the California Courts’ self-help resources: https://www.courts.ca.gov/selfhelp.htm.

Disclaimer: This article explains general California law and common practice. It is not legal advice. For guidance tailored to your situation, consult a licensed California attorney.

Helpful Hints

• Before filing, send a clear written demand proposing options (buyout, sale, mediation). A documented attempt to resolve can help later.
• Gather and organize key documents: deed(s), title report, mortgage statements, tax bills, lease agreements, expense and improvement records, and insurance policies.
• Order a professional appraisal early if value and feasibility of division will be disputed.
• Consider mediation or neutral valuation to reduce costs and time; courts often encourage or require alternative dispute resolution.
• Be prepared to address liens — a lender’s mortgage will usually be paid from sale proceeds before distribution among owners.
• Ask the court for an accounting of rents and profits if co-owners have collected rent or paid expenses unequally.
• Get local legal advice. Partition rules and procedures (forms, filing requirements, commissioner appointment) vary by county; a local real estate litigation attorney can explain timelines, likely outcomes, and possible offsets or credits you can claim.