Legal Question in Real Estate Law in California

Re: How much does partition action costs?

Partition actions - both maintaining and defending - are generally quite costly, both in terms of fees and costs. If the action proceeds through a sale and distribution of proceeds, except to incur at least $10,000 in costs. While the cost of the court-appointed referee (or in some cases, receiver) are generally deducted from the proceeds of the sale, they are nevertheless costs that are incurred.

Attorney's fees in an uncontested partition could realistically be between $10,000 - $20,000. A contested action would necessarily incur much more.

If "B" (in your example) did not contribute to the mortgage, purchase, maintenance, upkeep, interest, or taxes, "B" may not be an ideal candidate to pursue partition.

The law in complex in this area, and you should consult a qualified attorney.

Re: How much does partition action costs?

Partition actions - both maintaining and defending - are generally quite costly, both in terms of fees and costs. If the action proceeds through a sale and distribution of proceeds, except to incur at least $10,000 in costs. While the cost of the court-appointed referee (or in some cases, receiver) are generally deducted from the proceeds of the sale, they are nevertheless costs that are incurred.

Attorney's fees in an uncontested partition could realistically be between $10,000 - $20,000. A contested action would necessarily incur much more.

If "B" (in your example) did not contribute to the mortgage, purchase, maintenance, upkeep, interest, or taxes, "B" may not be an ideal candidate to pursue partition.

The law in complex in this area, and you should consult a qualified attorney.

Re: How much does partition action costs?

Partition actions - both maintaining and defending - are generally quite costly, both in terms of fees and costs. If the action proceeds through a sale and distribution of proceeds, except to incur at least $10,000 in costs. While the cost of the court-appointed referee (or in some cases, receiver) are generally deducted from the proceeds of the sale, they are nevertheless costs that are incurred.

Attorney's fees in an uncontested partition could realistically be between $10,000 - $20,000. A contested action would necessarily incur much more.

If "B" (in your example) did not contribute to the mortgage, purchase, maintenance, upkeep, interest, or taxes, "B" may not be an ideal candidate to pursue partition.

The law in complex in this area, and you should consult a qualified attorney.

Re: How much does partition action costs?

A should face the fact that B is entitled to partition. That means either A or B will buy the interest of the other, or that the property will be sold and after costs of sale, the proceeds split. Understanding this should make the matter simple to resolve. I like the technique of having each A & B writing down what he or she is willing to pay for the interest of the other. If A is willing to pay more, then A will buy the interest of B for that price. If A can't then B has the option to pay the same price to A for A's interest. If neither can buy the interest of the other then the property is sold.

Re: How much does partition action costs?

Another way to set a price is for A to pick a number, then B saya whether he will be the buyer or the seller at that number. Sort of a variant on "you cut and I'll choose" in dividing the last slice of cake.

The last few partition cases I've completed cost the plaintiff in the $12,000 - $16,000 range; all were contested to a point but then the parties either went to arbitration or otherwise settled out of court. (Arbitration is more like finishing up in court than like settling out of court, of course, because arbitration and trial in court both involve presentation of evidence and testimony and decision by a third party.)

Unless the defendant decides to file a cross-complaint, the defendant's legal costs are likely to be somewhat lower.

There is a provision in the partition laws for requiring certain legal expenses to be shared by the parties. It's in Code of Civil Procedure sections 874.010(a) and 874.040.

One of the reasons the defendant will ordinarily incur somewhat less in legal fees is that there is really no defense to a partition; it is a right of a co-owner, just like the right to vote. The right can be lost by express or implied waiver. An implied waiver might be that the co-owners have entered into a development contract for the property, or A has given B a right of first refusal or option to buy A out. It is also possible that the defendant may be able to show that the plaintiff is not really a co-owner at all, possibly because his deed was obtained by fraud or contains a fatal defect.

Otherwise, resisting the partition is generally futile, except perhaps to harass the other side into an earlier and better settlement. This is not to say the defendant should not hang in there. A partition suit involves two important phases: determining that the property can and should be partitioned; then, after a sale, deciding how the net proceeds of sale should be distributed.

A major recent problem in partition law and practice is the increasing probability that the property has no net equity, as a result of small down payments, taking seconds, and dropping market values. It seems to me that a partition by sale is likely to have the effect of an involuntary short sale on an undersecured lender. If a property appears to be "under water," the attorneys should consider the ramifications of a lender's not being paid off in full. Lender must, by the way, be made parties to the partition suit (see CCP 872.510).