Our Sacramento Real Estate Attorneys regularly receive phone calls or questions from people wanting to know how to get a co-owner or someone “off of title” of a home or other real property. This often occurs when two people agreed to buy a home or real estate together, and now they no longer want to be co-owners or partners in the home. If a voluntary agreement cannot be reached, the answer to the question generally involves the filing of a partition lawsuit as opposed to an illegal lock out.
What is a Partition Lawsuit?
Historically, a partition action is a lawsuit in which one co-owner asks the court to divide a piece of real estate equally between the owners. It originated with the concept of large acreage, and the parties would ask the courts to divide the property equally between the two of them. You do not need to have a reason such as breach of contract or real estate fraud, you can bring the action as a matter of right.
Because most parcels of property now include a home and cannot be equally divided, partition actions usually no longer actually seek the dividing of the real estate, but rather the purchase/sale of someone’s interest, or the sale of the entire property.
Does there have to be a reason or “cause” to file a Partition Lawsuit?
It is not uncommon to hear an uncooperative co-owner say, “you can’t make me sell.” However, that is not the law. In California, with only a few exceptions, a co-owner has an absolute right to force a partition action over the objection of another. In other words, if you are tired of a co-owner, or no longer want to own a property with someone, you can usually force a sale.
What happens in a Partition Lawsuit?
In a partition lawsuit, the court follows very specific and technical procedures. They are generally set out in California Civil Code 872.020 et. seq.
In a partition action, the court typically first determines if an equal division of the property is practical. Can it be divided in half? If it is a single family residence, or otherwise is not practical to divide it in half for zoning or equitable reasons, the court can order the property sold, and can even order a receiver to sell the property if the parties are not cooperating. In essence, the court determines what would be the most equitable (or fair) way to divide either the property or the value of the property.
One significant issue in a partition action is who pays for the costs and attorneys fees. The good news is that in California partition actions attorneys’ fees and costs spent by one party for the benefit of all parties are typically chargeable to everyone. In other words, the court will apportion those costs and fees amongst all of the owners, typically on a proportionate basis to their ownership interests. However, attorneys fees incurred in controversies between the owners are generally not divided-up, but rather must be paid by the individuals themselves.
If you are a co-owner of real estate, and would like to have your share purchased, sold, or your name taken off the title, please contact one of the Sacramento Real Estate Attorneys at Eason & Tambornini about a partition action.