Legal Question in Real Estate Law in California

The legal action to terminate an unhappy co-ownership is called a partition suit or partition action, and the law and procedure is set out in some detail in the Code of Civil Procedure.

A partition suit is not particularly complex or difficult to prepare and file. When the parties are both living in the property to be partitioned, there will undoubtedly be additional tension and cause for abuse once the suit is filed and served. The chances of "winning," i.e., getting an order for partition, are excellent - it is a co-owner's near-absolute right to obtain a partition, and the defendant's possible defenses are very limited (principally, waiver).

Once a partition suit is filed and served, several things can happen that will affect the time and expense. Of course, the defendant can dig in his heels, oppose, and force the whole scenario to be played out in court. The cost to plaintiff could be in the $10K-plus area by the time the process plays out: decree of partition, followed by sale of the property, then division of the net proceeds under court supervision. On the other hand, most defendants will see the handwriting on the wall, and will either (1) make an offer to buy out the plaintiff, (2) agree to be bought out by the plaintiff, or (3) agree to an out-of-court private sale of the property.

If the deal is (3), which might well happen here, the parties can agree to hire a private arbitrator to take a half day's testimony and decide how the net proceeds of sale should be divided between the sellers. Arbitration can also be used to resolve miscellaneous issues in solutions (1) and (2).

Preparing, filing and serving the suit, including a title report (recommended) should not cost more than $3,000, maybe less, and could bring about a resolution if the other side sees the inevitable result and agrees to cooperate.

The applicable law contains some provisions for shifting certain attorney fees to the other party, but I don't see this happen often, as the conditions are seldom met.

The time required is around a year, start to finish, for a fully litigated case, but highly variable due to differences in the time required to get a trial date, sell the property, etc., including factors under the parties' control such as the amount and complexity of discovery conducted. If neither party is rich and the case is simple, I'd guess this is 70% likely to settle out of court in a couple-three months, 5% likely to go all the way in court, with the remaining 25% sprinkled in between. Just guesses, but based on experience. Personalities rather than rational decision-making can come into play.