Trial for Partition of Property in California

Code of Civil Procedure Part 2, Title 10.5, Chapter 3 concerns the civil trial for the partition of real and personal property in California.

Article1 deals with the determination of interests of the parties. Section 872.610 provides that the interests of the parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the action.

Section 872.620 explains that, to the extent necessary to grant the relief sought or other appropriate relief, the court is required to ascertain the state of the title to the property.

Section 872.630 states that, to the extent necessary to grant the relief sought or other appropriate relief, the court is required to determine the status and priority of all liens upon the property. The court may appoint a referee to ascertain the facts necessary for the determination required by this section. 

Section 872.640 says that, where two or more parties are unknown, the court may consider their interests together in the action and not as between each other.

Article 2 deals with the determination of the right to partition. Section 872.710 requires at trial for the court to determine whether the plaintiff has the right to partition. Partition as to concurrent interests in the property is as of right unless barred by a valid waiver. Partition as to successive estates in the property is allowed if it is in the best interest of all the parties.

Section 872.720 provides that, if the court finds that the plaintiff is entitled to partition, it makes an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.

Section 872.730 provides that, to the extent that the court determines that the provisions of this title are a suitable remedy, the provisions may be applied in a proceeding for partnership accounting and dissolution, or in an action for partition of partnership property, where the rights of unsecured creditors of the partnership will not be prejudiced.

Article 3 deals with the determination of the manner of partition. Section 872.810 requires the court to order that the property be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment.

Section 872.820 requires the court to order that the property be sold and the proceeds be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment in the two specified situations.

Section 872.830 states that, if the court finds that sale and division of proceeds for part of the property would be more equitable than division of the whole property, the court may order that such part be sold and the remainder divided.

Section 872.840 specifies that, where the property or an interest therein is subject to an express trust, the court may order that the property be sold.