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California’s Uniform Partition of Heirs Property Act

If the court determines that the property is heirs property, the property must be partitioned unless all of the co-tenants otherwise agree

By Chris Micheli, June 27, 2022 4:18 pm

California has a number of formal acts in statute. The Uniform Partition of Heirs Property Act is contained in Code of Civil Procedure Part 2 (Of Civil Actions), Title 10.5 (Partition of Real and Personal Property, Chapter 10, which contains Sections 874.311 to 874.323. Chapter 10 was added in 2021 by Chapter 119.

Section 874.311 provides that the act is known and may be cited as the Uniform Partition of Heirs Property Act. Section 874.312 defines the following terms: “ascendant,” “collateral,” “descendant,” “determination of value,” “heirs property,” “partition by sale,” “partition in kind,” “record,” and “relative.”

Section 874.313 specifies that this act applies to partition actions filed on or after January 1, 2022. In an action to partition real property under this title, the court is required to determine whether the property is heirs property. If the court determines that the property is heirs property, the property must be partitioned under this chapter unless all of the co-tenants otherwise agree in a record.

Section 874.314 provides that this act does not limit or affect the method by which service of a complaint in a partition action may be made.

Section 874.315 provides that, if the court appoints referees, each referee, in addition to any other requirements and disqualifications applicable to referees, must be disinterested and impartial and not a party to or a participant in the action.

Section 874.316 provides that, if the court determines that the property that is the subject of a partition action is heirs property, the court must determine the fair market value of the property by ordering an appraisal. There are specified rules if the co-tenants agree on the value or if the court determines the evidentiary value of an appraisal.

Section 874.317 provides that, if any co-tenant requested partition by sale, the court must, after the determination of value, send notice to the parties that any co-tenant except a co-tenant that requested partition by sale may buy all the interests of the co-tenants that requested partition by sale. There are specified rules for this procedure.

Section 874.318 provides that, if all the interests of all co-tenants that requested partition by sale are not purchased by other co-tenants, or if after conclusion of the buyout a co-tenant remains that has requested partition in kind, the court must order partition in kind unless the court, after consideration of the factors listed, finds that partition in kind will result in great prejudice to the co-tenants as a group. In considering whether to order partition in kind, the court must approve a request by two or more parties to have their individual interests aggregated.

Section 874.319 provides that, in determining whether partition in kind would result in great prejudice to the co-tenants as a group, the court must consider specified conditions.

Section 874.320 provides that, if the court orders a sale of heirs property, the sale must be an open-market sale unless the court finds that a sale by sealed bids or an auction would be more economically advantageous and in the best interest of the co-tenants as a group. There are specified rules for open-market sales and the parties to the transaction.

Section 874.321 provides that a broker appointed to offer heirs property for open-market sale must file a report with the court not later than seven days after receiving an offer to purchase the property for at least the value determined.

Section 874.321.5 provides that, in an action for partition of heirs property, the court may apportion the costs of partition, including an appraisal fee, except that the court must not apportion the costs of partition to any party that opposes the partition unless doing so is equitable and consistent with the purposes of this chapter.

Section 874.322 provides that, in applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Section 874.323 provides that this Act modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act, but does not modify, limit, or supersede of that act or authorize electronic delivery of any of the notices.

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