Partition lawsuits allow co-owners of property to split up. Partition is the real estate litigation equivalent of divorce for people who own real property together. The law does not force individuals to remain as co-owners in the event that one of the owners wants to split up. The partition process in California is governed by Code of Civil Procedure section 872.010 et seq.
How Can Real Property Be Partitioned?
In other words what will the final result of a partition action be? The court can do three possible things in a partition lawsuit. The first is to physically divide the property. If the partition action is between owners of a large plot of land, the court can give each party a portion of the land and let them do what they please with their portion. The second option is to sell the property and divvy up the proceeds. The second option is the most common in an urban setting since a home or building cannot usually be divided up among the owners. The third option is partition by appraisal. California law has a presumption in favor of dividing the property if possible because the law presumes that people intended to own property and it wants to respect that wish. Again, at least in a city like Los Angeles, the partition lawsuit involves a single plot of land with a property on it that cannot be divided and therefore option two is the most common form of partition.
Does A Partition Lawsuit Make Sense?
As you can see, every possible outcome of a partition lawsuit is something that the parties could agree upon themselves without going through partition litigation. In a perfect world co-owners would be able to agree to either buy and sell to each other or sell the property to a third party and divide the proceeds. The parties could accomplish this much more quickly through agreement and they would save a tremendous amount of money on attorneys fees and court costs. But we do not live in a perfect world. Partition lawsuits often arise because of emotional issues between the parties–anger, betrayal, lack of communication and other non-legal impediments. We handle a lot of family partition lawsuits where the co-owners are siblings or other family members. Their issues are not so much legal issues but rather anger issues over other parts of their personal lives (“my brother is always trying to boss me around”, “my sister was always the favorite child”, “my parents really wanted me to have the property”).
The thing to remember is that every co-owner is entitled to partition. The court will not look into whether your parents loved you more or whether your brother is bossy. If there are co-owners and one of the co-owners wants out, partition will occur. Another idea to keep in mind is that the court has only limited remedies in a partition lawsuit. It may divide the property or force a sale. The court will not award pride, wreak vengeance or even force an apology. A forced sale will not make the other co-owner a better person. Therefore, the personal issues between the parties will have to be dealt with in a different forum at a different time.
What To Do When You Are Sued For Partition.
An experienced real estate litigation attorney will recommend an early mediation. Mediation is a voluntary settlement process where the parties use a third party neutral mediator to try to reach an agreement. Los Angeles has numerous mediators and mediation providers. Theoretically, settlement of a partition lawsuit should be easy. If the parties both wish to sell, the parties should hire a broker to sell the property for the best price and then divide the money according to each co-owner’s ownership interest and any accounting issues. If one party wishes to buy the other co-owner out, the parties can hire a neutral appraiser to determine the fair market value of the property and the purchasing owner can pay the selling owner.
Sadly most partition litigation does not settle so easily. One or both of the owners needs to go through the litigation process for awhile before coming to his or her senses. Eventually the cost and anxiety caused by the litigation leads to settlement (and most partition lawsuits do settle eventually). However, most owners who have been involved in real estate litigation and have paid attorneys’ fees and costs would probably look back and wish they had settled earlier.
Real estate litigation attorney Laine T. Wagenseller specializes in real estate and partnership litigation in Los Angeles. Attorney Wagenseller founded Wagenseller Law Firm and the firm’s goal is to be the preeminent boutique real estate litigation law firm in Los Angeles. For more articles on partition lawsuits and other real estate litigation topics, please visit www.wagensellerlaw.com.