Partition of Real Property Act

Part 2, Title 10.5, Chapter 10 provides for the Partition of Real Property Act in California.

Section 874.311 names the law as the Partition of Real Property Act. This act applies to real property held in tenancy in common where there is no agreement in a record binding all the cotenants which governs the partition of the property.

Section 874.312 defines the following terms: “determination of value,” “partition by sale,” “partition in kind,” and “record.”

Section 874.313 requires the property to be partitioned under this chapter unless all of the cotenants otherwise agree in a record.

Section 874.314 specifies that this act does not limit or affect the method by which service of a complaint in a partition action may be made. If the plaintiff in a partition action seeks an order of notice by publication, the plaintiff, not later than 10 days after the court’s determination, is required to post and maintain while the action is pending a conspicuous sign on the property that is the subject of the action.

Section 874.315 provides that 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 requires the court to determine the fair market value of the property by ordering an appraisal. If all cotenants have agreed to the value of the property or to another method of valuation, the court is required to adopt that value or the value produced by the agreed method of valuation.

If the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, must determine the fair market value of the property and send notice to the parties of the value. If the court orders an appraisal, the court appoints a disinterested real estate appraiser licensed in the State of California to determine the fair market value of the property assuming sole ownership of the fee simple estate.

Section 874.317 states that, if any cotenant requested partition by sale, the court is required, after the determination of value, to send notice to the parties that any cotenant except a cotenant that requested partition by sale may buy all the interests of the cotenants that requested partition by sale.

Section 874.318 provides that, if all the interests of all cotenants that requested partition by sale are not purchased by other cotenants, or if after conclusion of the buyout, a cotenant remains that has requested partition in kind, the court is required to 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 cotenants 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. If the court does not order partition in kind, then the court must order partition by sale or, if no cotenant requested partition by sale, the court must dismiss the action.

Section 874.319 states that, in determining whether partition in kind would result in great prejudice to the cotenants as a group, the court is required to consider the seven specified items. The court cannot consider any one factor to be dispositive without weighing the totality of all relevant factors and circumstances.

Section 874.320 says that, if the court orders a sale of 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 cotenants as a group.

Section 874.321 states that broker appointed to offer 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. The report must contain the seven specified items of information:

Section 874.321.5 allows the court to apportion the costs of partition, including an appraisal fee, except that the court cannot 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 874.323 explains that this act modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act.