adkisson pitet california code of civil procedure co-owners equitable remedy overbidding partition action real estate law

by Amy Narayan April 04, 2022


A partition action is a statutory remedy in the State of California. It is typically used when co-owners cannot agree on how to sell or the best use for a piece of property. Co-owners seeking a partition action usually acquired the property as joint tenants or through an inheritance. It is common for co-owners to have conflicting interests such as when they cannot agree on a sales price or they disagree on the best use of the property.

Who can file a partition action?

Any co-owner can file a partition action, regardless of the size of their ownership interest. In other words, if someone owns as little as 1% of a piece of property, they can exercise their right to partition. Under California Civil Procedure Section 872.210, “a partition action may be commenced and maintained by any of the following persons: (1) a co-owner of personal property or (2) an owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently, or in successive estates.” Therefore, to prevail in a partition action, a party must prove through the property deed(s), other title paperwork, and any estate planning documents if applicable, that they have an interest in the property. Once a legal interest is established, then the court will either order a forced sale (partition by sale) or the court will divide the property into pieces and give each owner a separate property interest (partition in kind). If the court orders a sale, it will divide the proceeds among the owners in direct proportion to their interests.

What are the pros and cons of a partition action?

One “pro” of a partition action is that it ensures an end to costly and emotional real estate disputes, especially when the disputes arise following a death in the family and a subsequent inheritance of real property between contentious family members. An order of partition by sale also speeds the process along, forcing the property to be sold either by public auction or through the appointment of a referee to oversee the sale. However, this brings up the most significant “con;” it puts the entire sales process in the hands of the court and eliminates any control the owners may have over their interests, including the final sales price. The partition process will also incur additional costs, including attorneys’ fees, fees paid to the court-appointed referee, and any other court costs passed on to the owners.

Can an owner of property recover expenses and attorneys’ fees and costs when the court orders partition? In some cases, yes, if the court deems it is in the parties' best interests and is equitable. California Code of Civil Procedure 874.040 states that “the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.” This is especially important if a co-owner chooses to be difficult or uncooperative. In addition, parties can often recover amounts spent on mortgage payments, taxes, insurance, maintenance, repairs, and other expenditures in excess of their ownership interest.

If I don’t want the property sold, can I stop a partition action?

Because partition is an absolute right in California, it is difficult to defeat, once ownership is established. That being said, a co-owner can challenge the other parties’ ownership interest. If property ownership is acquired through inheritance, the estate documents can be challenged. Ownership can also be challenged by forcing co-owners to establish a chain of title from the inception of the property ownership. If a party can show that the property was not properly conveyed or recorded by the original owners, that could potentially stop a partition action. Another way to stop a partition action is to buy the other parties out. If you have enough cash, this is a fairly simple process. If financing is required to facilitate a buy out, an escrow can be opened to manage the funding process and seamless transfer of the ownership interests. Once this occurs, the escrow company will pay the co-owners their share, then record the deed. Keep in mind, when determining the payout, any mortgages or liens must be deducted first, to ensure an equitable distribution. This is a creative way to defend against a partition action, but requires the cooperation of all parties. If the parties are extremely adverse, and are unable to reach an agreement for a buy-out, there can be an option that the court provides for a co-owner to “overbid” at the sale with a “credit bid” for that owner’s equity in the property. California’s Code Civ. Proc. §873.610 states that “The court may, at the time of trial or thereafter, prescribe such manner, terms and conditions of sale not inconsistent with the provisions of this chapter as it deems proper for the particular property or sale.” Simply put, if a co-owner wishes to retain their interest in the property, they can ask the court to allow “overbidding” at the hearing approving the sale so that a co-owner can outbid the other co-owners. In addition, the co-owner should request a credit for their interest in the property. For example, if a property is owned by two co-owners in equal shares and is worth $500,000, each owner has a $250,000 equity interest. Therefore, if they are allowed to do a “credit bid,” they will only need to bid $250,000 instead of $500,000, as they are given credit for the $250,000 they would have received if the property had otherwise been sold.

As with most legal proceedings, a partition action can be expensive, and may not allow for the most profitable outcome. Mediation, negotiation and cooperation are the preferred methods for reaching the most equitable outcome in a property dispute. If, however, an agreement just simply cannot be reached, the experienced attorneys at Adkisson Pitet LLP can help find a path through the clouds of confusion.



Amy Narayan


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What is a partition action in Wisconsin? ›

(1) A person having an interest in real property jointly or in common with others may sue for judgment partitioning such interest unless an action for partition is prohibited elsewhere in the statutes or by agreement between the parties for a period not to exceed 30 years.

What is a partition action in CT? ›

A partition action is a type of lawsuit pertaining to joint owners of real property. When two or more owners cannot agree on the disposition of the property in question, any of the owners can file a partition action in the appropriate court.

What is a partition action in North Carolina? ›

North Carolina, like other jurisdictions, allows a co-owner of real estate to ask the court for a partition of the land. In a partition proceeding, the court can divide the land in one of two ways – either by actually dividing the land itself (a partition “in kind”) or by selling the land and dividing the proceeds.

What is a partition action in Georgia? ›

Partition Actions

When two or more people jointly own a piece of property, and they disagree about how to divide that property, those parties can initiate a partition action. Under Georgia law, a partition is when the court steps into the disagreement and has the land divided by court order.

Is partition an action in equity? ›

A partition action is a statutory remedy in the State of California. It is typically used when co-owners cannot agree on how to sell or the best use for a piece of property.

What are the three types of partition? ›

Different Drive Partitions
  • Primary Partition: Contains one file system and typically stores the boot files for the primary operating system. ...
  • Extended Partition: A defined area where logical drives are stored. ...
  • Logical Partition: Can be used to store data, but can't boot an operating system.
9 Jul 2018

What are the two phases of an action for partition? ›

In this jurisdiction, an action for partition is comprised of two phases: first, the trial court, after determining that a co-ownership in fact exists and that partition is proper, issues an order for partition; and, second, the trial court promulgates a decision confirming the sketch and subdivision of the properties ...

How do you respond to a partition action? ›

When an action for partition is filed, the opposing party has an opportunity to respond to this action by filing an answer. An answer to a partition action is a pleading by the defendant in response to the plaintiff's complaint for partition.

Which is an example of a partition action? ›

For example, if a brother and sister jointly own inherited property from their parents, they might agree to a partition by appraisal. In that instance, they agree in advance that one of them would buy the other's interest at whatever the appraised price is determined to be.

How do you win a partition action in NC? ›

Here are some of the most common ways to win a partition suit:
  1. Getting bought out at a fair price. ...
  2. The property being sold on the open market. ...
  3. Getting a co-owner to move out of the property so it can be rented. ...
  4. Getting reimbursed for the funds you put into the property.
21 Oct 2022

Is an action for partition a real action? ›

An action for partition of real estate is at once an action for the determination of the co-owners of the subject property and an action for the eventual conveyance of specific portions thereof to the co-owners.

When can a partition deed be challenged? ›

Talk to a real lawyer about your legal issue. You can challenge a Partition Deed if you feel you are not genuinly allotted the share through a suit for partition. You should have a better reason to tell the Court why you were silent for the past three years.

How do I stop a partition action in Georgia? ›

Unfortunately, regardless of whether the co-owners seeking to sell are in the minority or majority, once a partition lawsuit is filed, it cannot generally be stopped.

Can partition be challenged? ›

Can partition deed be challenged? Yes, a partition deed can be challenged.

How do you prove a partition suit? ›

The documents required for filing a suit for property partition are mentioned as below: Identity proof of legal heir. Certified copies of all title deeds of the property, including the description of the property. Valuation of property.

What are three forms of equitable damages? ›

There are three types of equitable remedies: specific performance, injunction, and restitution.

What is an equitable cause of action? ›

An “equitable” claim, cause of action, or a lawsuit “in equity,” is very similar to a tort, except that usually the remedy involved is granting a court order for the losing defendant to actually do something. The main issue in an equitable lawsuit is usually fairness.

What does partition action refer to? ›

A Partition action is a legal action filed in Court that names all parties who have or claim an interest in the subject property, including owners, lienholders, lenders, and holders of future estates. The action commences with the filing of a Partition complaint, which is filed and served on all named defendants.

What are the main two types of partitions? ›

The two types of partitions are: Primary partition. Extended partition. A primary partition is a partition on which you can install an operating system.

What are the two types of partitioning methods? ›

Partitioning Methods
  • Range Partitioning.
  • Hash Partitioning.
  • List Partitioning.
  • Composite Partitioning.

What are two different methods for partitioning? ›

GPT and MBR are the two different methods for partitioning hard drives. Each of them stores the partitioning information on a drive in its own way. The information includes where partitions start and begin. Therefore, your operating system knows which sectors belong to each partition and which partition is bootable.

Which property is not subject to partition? ›

Subject Matter Of Partition

The only property which can be divided is the coparcenery property. Coparcenery property is ancestral property. Self-acquired property of a member is not subject of partition as it belongs to the owner. Self-acquired property is owned by person hard earned more, gift or will.

Who can demand partition? ›

Under the Mitakshara Law, the right of a son, a grand-son and a great grand-son as well as every other adult member of the coparcenary, can demand a partition even against the consent of the others.

Who Cannot file a partition suit? ›

Any or all the co-owners of the property can file a suit for partition in issue. In a situation where more than one heir exist, and if all of them are not willing to file a partition suit, it is not required for all the heirs to collectively participate in a suit for partition.

Why would a co owner of a property file a partition suit? ›

A California partition action happens when one co-owner of real property wants to sell but other co-owners do not want to sell their ownership rights. Partition means division. The opposing co-owners have the absolute right by law to divide the property and sell their portion with the legal remedy of “Partition”.

Can I be forced to sell my share of a house? ›

How you hold the beneficial interest on trust with your joint owners doesn't stop you from forcing the sale of a property. It will, however, affect the distribution of any income when the property sells.

Can I be forced to sell a jointly owned house? ›

Unless you and your spouse agree to deal with the home in another way, they can apply to Court for an order for sale. Such an order would not ordinarily be made until a final hearing.

Can you force someone to buy you out of a house? ›

A homeowner can force a sale that is co-owned, either by negotiating a buyout, selling your share to a new owner, or getting a court-forced to sale. A mortgage is an additional legal issue that needs to be addressed in a forced home sale.

How is property divided in partition suit? ›

Partition of the property by mutual agreement can be done by Partition Deed or Family settlement. Partition Deed divides the property between the co-owners of the property. This deed is prepared in order to divide the property so that each person gets an absolute title over his own part of the property.

Is verbal partition of property legally valid? ›

long as it is admitted by all the parties that he has derived the share through Thandavaraya Gounder. It is true to state that the oral partition is valid in law.

How do I sell my house if one partner refuses? ›

Involve a judge. If you can't find a workaround that suits both parties, you do have the option to turn to a judge to compel a sale of the home. Once a judge orders a home to sell, you will need to bring in a real estate agent to sell the home, even if one party isn't happy about it.

Can partition suit be withdrawn by plaintiff? ›

As per Order 23, Rule 1(1) of the CPC, a plaintiff may abandon his suit or abandon a part of his claim at any time after the institution of a suit. As soon as an application is filed under this sub-rule, the withdrawal of the suit is complete and such withdrawal is not dependent on the court's order.

What is waiver of action for partition? ›

The Members hereby waive any right of partition or any right to take any other action that otherwise might be available to them for the purpose of severing their interest in the assets held by the Company from the interest of the other Members.

What are the rules for partition? ›

A partition is a division of a property held jointly by several persons, so that each person gets a share and becomes the owner of the share allotted to him. It is done by dividing the property according to the shares to which each of the parties is entitled to in law as applicable to them.

What is the difference between partition deed and partition suit? ›

A partition deed is a legal document made with mutual consent, whereas a partition suit is done when a lawsuit is filed to get the partition done.

Can partition deed be Cancelled? ›

You can cancel the partition deed if any fraud has been committed. You can approach the court for cancellation of the partition deed by filing a suit before the court. You can also file a recovery suit to recover your money.

Can partition property be willed? ›

Property partition is subject to the inheritance law

An interest in a coparcenary property can also be Willed away. This share goes out of the purview of ancestral property. If a father dies leaving behind self-acquired property, his son will inherit it absolutely.

Can you claim partition if father has already sold the land? ›

*Referring to Ajinkya's question above, properties of the paternal ancestors cannot be sold without the consent of the successors. However, it can be reclaimed by filing a suit for partition in a court. *Similarly, if your share is denied you can send a legal notice demanding your rights.

Can a partition be reopened? ›

A partition can be re-opened on the grounds of Mistake, Fraud, Son in Womb, Adoption, Disqualified coparceners, Son conceived and born after partition, Absentee coparcener; and Minor coparcener. In case the partition is found fraudulent, it can be set-aside and the person injured can claim to reopen of the partition.

How long does a partition case last? ›

Generally, a partition suit court proceedings take 2 years to complete.

Can partition suit be dismissed in default? ›

The Karnataka High Court has said that a suit for a primary relief of partition and separate possession cannot be rejected at the threshold citing Section 27 of the Limitation Act 1963.

How do you fight a partition? ›

You can hire a trust litigation attorney to litigate a partition action. Your attorney may fight to increase the value of your share of the property if, for example, you paid for maintenance, repairs, improvements, property taxes, mortgage payments, etc.

Can partition be set aside by court? ›

(1) A partition effected between the members of an Hindu Undivided Family by their own volition and with their consent cannot be reopened unless it is shown that it was obtained by fraud, coercion, misrepresentation or undue influence.

What is the problem of process of partition? ›

The process of partition had been started in 1940 when Muslim League Propounded Two Nation Theory. This process involved various problems: 1. Areas were supposed to be distributed on the basis of religions majority i.e. Muslim majority areas built Pakistani territory and rest stayed with India.

What is a partition proof? ›

Definition and Notation

A partition of a set X is a set of non-empty subsets of X such that every element x in X is in exactly one of these subsets (i.e., X is a disjoint union of the subsets).

What is final decree in partition suit? ›

Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of the divided property, then such inquiry shall be held and pursuant to the result of further inquiry, a final decree shall be passed.

How do you prove joint possession in a partition suit? ›

In order to bring a case under the second alternative of Clause (v-A) of Article 17, three elements are necessary: (1) Suit must be to enforce a share in any property, (2) That property must be joint family property, (3) The plaintiff must be in possession of the property of which he claims to be a co-sharer.

What happens after filing partition suit? ›

Once the fee is paid, the Court shall fix up a date for hearing and decide on the merits of the case. An important point to remember here is that the Court will only proceed with the case if it finds any merits in the suit.

What are the two types of partition? ›

The two types of partitions are: Primary partition. Extended partition.

Is there any limitation period in a partition suit? ›

According to the Limitation Act, in the case of a suit for partition, the limitation is fixed at 12 years from the day the plaintiff claims the property. The partition suit limitation for ancestral properties is also fixed at 12 years.

Who Cannot sue for partition? ›

In a situation where more than one heir exist, and if all of them are not willing to file a partition suit, it is not required for all the heirs to collectively participate in a suit for partition. Possession of all the documents of property of which the partition is sought, is irrelevant.

How do you win a partition suit? ›

Who can file a partition suit? Any person who is a legal heir or co-owner of the joint property, in possession of any legal document (will, gift deed,sale deed) can file a suit for partition and claim his individual share.

What are the key partitioning techniques? ›

  • Round robin partitioner. The first record goes to the first processing node, the second to the second processing node, and so on. ...
  • Random partitioner. ...
  • Same partitioner. ...
  • Entire partitioner. ...
  • Hash partitioner. ...
  • Modulus partitioner. ...
  • Range partitioner. ...
  • DB2 partitioner.
30 Mar 2015

What are the key partitioned techniques? ›

Partitioning is based on a key column modulo the number of partitions. This method is similar to hash by field, but involves simpler computation. Divides a data set into approximately equal-sized partitions, each of which contains records with key columns within a specified range.

Can a family partition deed be challenged? ›

Can partition deed be challenged? Yes, a partition deed can be challenged.

Who are entitled to demand for partition? ›

Under the Mitakshara Law, the right of a son, a grand-son and a great grand-son as well as every other adult member of the coparcenary, can demand a partition even against the consent of the others.

What are the 6 consequences of partition? ›

(i) After 1947 most of the population transferred from one to another in unplanned manner. (ii) Many people was killed in the name of religion. (iii) Lakh of people who managed to cross the border lived their life as refugees and in refugee camps. (iv) Thousands of women were abducted.


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