Shared property ownership in San Jose can be difficult.  Each San Jose property owner brings their unique expectations and circumstances to property ownership in a rapidly changing and spirited real estate market. Although initially agreeing on property use, co-owner notions of what to do with the property may diverge with time. Perhaps one co-owner wants to rent out the property, while the other wants to sell it.  Unfortunately, co-owners commonly end up in dispute regarding their property.  If the co-owners are unable to resolve the dispute – and no written agreement exists providing for dispute resolution – the parties become stalemated.  When a disagreement arises between two or more San Jose property owners as to how best to use the property, a partition may be necessary.

Voluntary Partitions in San Jose

A judicial partition action should be a matter of last resort.  Before commencing a partition action, co-owners should attempt to reach a voluntary partition agreement to resolve the dispute.  It may behoove the co-owners to mediate the dispute, even with counsel, and avoid expensive litigation.  San Jose’s unique real estate market means that co-owners are often able to settle disputes through voluntary partition.  If, however, co-owners cannot resolve their dispute through compromise and voluntary partition, any co-owner has the right to initiate a partition action.

Initiating a San Jose Judicial Partition Action

Initiating a judicial partition action requires the plaintiff to file a complaint, which must conform to the California Code of Civil Procedure’s strict pleading requirements. Further, the complaint must allege the proportionate interests of the co-owners, or it will fail.  Neusted v. Skernswell, 69 Cal. App. 2d 361, 363-364 (1945).  After filing the complaint, the plaintiff must record a notice of pendency of action at the recorders’ where the property that is the subject of the partition action is situated.  California Code of Civil Procedure § 872.250.  Finally, the plaintiff must serve the other co-owners with the Summons & Complaint.

Types of San Jose Judicial Partition Actions

At its core, a partition action is a judicial request to divide real property equitably between the co-owners, and any co-owner may initiate the action.  California Code of Civil Procedure § 872.210.  In dividing the property, the court may utilize several manners of partition, including:

  • Partition by Sale;
  • Division of Property;
  • Partition by Partial Sale;
  • Partition by Appraisal.

1. Partition by Sale

A partition by sale occurs where the court orders the property sold and the proceeds divided amongst the co-owners according to their interests in the property.  California Code of Civil Procedure § 872.820. Although disfavored, courts will order a partition by sale when it is more equitable than division of property, or where the co-owners agree to it.

2. Division of Property

A division of property occurs when the court divides the property between the co-owners according to their proportionate ownership interests.  California Code of Civil Procedure § 872.810.  As forced partitions by sales are strongly disfavored, courts prefer this method, when possible.  Richmond v. Dofflemyer, 105 Cal. App. 3d 745, 757 (1980).  However, property cannot always be physically divided.

3. Division by Partial Sale

A division by partial sale is a hybrid-partition by sale and division.  Here, the court will order a portion of the property sold, and the remainder divided amongst co-owners.

4. Partition by Appraisal

The co-owners may agree on a partition by an appraisal, where the ownership interests of the co-owners are undisputed or have been previously adjudicated.  California Code of Civil Procedure § 873.910.  Partition by appraisal is effectuated through one or more co-owners purchasing a departing co-owner(s) ownership interest on agreed terms, and under court supervision, based on a third party appraisal. Notably, a court cannot compel a partition by appraisal; all of the co-owners must agree to it.

What Happens in a San Jose Judicial Partition Action?

If the co-owners are not able to resolve their dispute via settlement, the court will ultimately order a partition in a manner described above.  In addition to awarding proceeds according to the co-owners proportionate shares, the court has the power to award reasonable attorney fees and court costs. California Code of Civil Procedure § 874.010.  California courts typically apportion costs among the parties in proportion to their interests, and will also make equitable apportionments.  Lin v. Jeng, 203 Cal. App. 4th 1008, 1025-1026 (2012).

Astanehe Law Knows Partition Actions

Astanehe Law provides representation to property owners seeking partition.  We work diligently to achieve results quickly, efficiently, and economically.  If you are a San Jose property owner with questions about your options regarding the property you co-own, contact Astanehe Law to speak with an experienced attorney.