What Is Partition?
The term “partition” refers to a judicial decree (a Court Order) or a voluntary agreement of co-owners to separate and terminate their common interests in the same parcel of property. The partition process does not involve a transfer of title because the parties already have title to the property. What happens is that their commonly held title is divided. This changes the rights of the co-owners from common possession of the entire property into individual rights of exclusive possession of some portion of the property for each co-owner.
There are three methods of partition:
- a physical division of the property;
- a sale of the property and a division of the proceeds; or
- a partition by appraisal where one co-owner acquires the interests of the other co-owners based on a Court Ordered and supervised appraisal.
An action for partition may also include an accounting so that a co-owner who has advanced more than his share of funds to pay common expenses can be reimbursed.
Who Can Legally File A Partition Lawsuit?
Although there are some exceptions, the general rule is that each co-owner has an absolute right to a partition of commonly owned property. The right to partition between co-owners is not affected by the fact that the property is subject to a lease, mortgage or easement. By the same token, the rights of a lien holder, an easement holder or a tenant are not affected by the fact that a partition decree is granted by a Court.
When co-owners are husband and wife, neither may bring a lawsuit to partition their community or quasi-community property, or the separate property of either spouse that is subject to a homestead. However, a husband and wife may partition the co-ownership of non-community property that is not homesteaded.
Property owned by a partnership may be partitioned in a partnership accounting action. Property that is held in trust for two or more beneficiaries cannot be partitioned if the partition would defeat the lawful purpose of the trust or interfere with the functions of the trustee. However, on termination of the trust, the beneficiaries become co-owners, and any co-owner may file a lawsuit to partition the property.
There are some equitable defenses to an action for partition, including waiver and estoppel.
For more information on Partition Actions in California, a consultation with Orange County real estate attorney Debra Grimaila, Esq. is your next step. Get the answers you seek by calling Toll Free (844) 921-1937 now.
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