Legal Question in Real Estate Law in California

Re: Partition of Real Property

Your basic question seems to be whether there are defenses to a partition lawsuit, and more specifically, whether your facts show a defense.

Partition is a right. The right is held by each co-owner of co-owned property where the co-ownership is as tenants in common, joint tenancy, and in some cases, partnership. Partition cannot be used to divide community property. In your case, the 75% owners could sue for partition, or so could the 25% owner, if he/she chose to do so.

However, the right to partition can be waived. Waiver is about the only real defense to a properly-brought partition suit, although other good and successful defenses do crop up from time to time in special situations.

Waiver of the right to partition can either be express or implied. An express waiver could be, for example, a written contract between co-owners stating "Each co-owner hereby waives his/her/its right to partition the property before 2025" or words of similar effect.

Courts have found an implied waiver of the right to partition where the parties have entered into various kinds of agreements regarding development, management or use of the property that seem to be in essential conflict with partitioning and selling the property, even though the right to partition and its waiver are not mentioned.

Usually, agreements implying a waiver of the right to partition are long-term. In your situation, I don't sense any agreement long-term enough or formal enough to constitute a waiver, but if you were to furnish me additional facts, I might then see a waiver or some other defense.

In this particular situation, the 25% owner is likely to emerge better off from a partition than the 75% owner, or to put it another way, the 75% owners would seem foolish to partition rather than to accept the offer. This is partly because of the generous price apparently offered, partly because partitions suits cost money to file and prosecute, and partly because a co-owner that has advanced a disproportionate share of common costs is likely to be entitled to reimbursement before the net proceeds of sale are distributed pro-rata.

I guess you are the 25% owner, but the answer would be the same if you are the 75% folks or merely a neutral bystander. Incidentally, most partition suits settle out of court well before the sale and final distribution of proceeds, saving everyone time and money. If I can be of further assistance, please contact me directly.