Legal Question in Real Estate Law in California

Re: ...about this ''partition thing...''

You have a breach of contract action if anything. It is the brothers who would have to partition in the event that the upholds your contract with one of the brothers who owns a undivided one half interest in the property. Is the offer and acceptance in writing? Contact me directly.

Re: ...about this ''partition thing...''

errata: The brothers may be forced into partition of their undivided interests if the court upholds your agreement with one of them. Contact me directly regarding costs. A retainer/contingency agreement may be an option.

Re: ...about this ''partition thing...''

In a partition action, if the parties cannot agree, the court appoints a referee to sell the property. The property often sells way below market value. Different scenarios are possible. One, you buy the 50% share from the brother who wants to sell, and then bring a partition action. The other brother agrees to sell to you or the court orders the referee to sell the property. If the court orders the referee to sell the property, you can bid on the property. If you are outbid, you get one-half the proceeds. If you are the high bidder (which will probably be the case), you will have to arrange financing with the referee to buy out the other owner's half. Having said all that, this is probably a very good way to get one-heck of a deal on property. People often bid as much as $100,000 below market value. The risk is that you may get outbid, so you need to weigh carefully how much you will bid. A second scenario is that the brother who wants to sell brings the partition action before you buy. Then the procedure is the same from there on. The cost for a partition action varies, but I would say on the average you would be looking at around $7,000 to $10,000 in costs and attorney fees. Keep in mind that the referee will charge a fee too.

Re: ...about this ''partition thing...''

A partition action is a two-step legal action (lawsuit) that has been made available under our codes to allow a disgruntled co-owner to force the separation of the co-owned property into two pots (or as many as there are co-owners). It can be used for personal property, but more often is used to divide real property.

As the name suggests, in days of yore the farm or ranch was simply divided between the deceased owner's heirs; a 640-acre farm became four 160-acre places. This doesn't work in a 21st Century, largely urbanized society, where lots are highly developed and practical considerations as well as zoning laws preclude further subdivision. So, nowadays, most partition is by sale and division of the net proceeds.

In the first step, the court tries the issue of the plaintiff's right to partition, resulting in an interlocutory judgment of partition. If the reluctant owner has any defense to the action, this phase is where it must be raised, but there are few defenses to a partition suit, and "Gee, your honor, I just don't want to sell, I like it here, this is where I was raised!" isn't a defense, nor is "The market is lousy now, I think we should wait five years!" However, the right to partition can be waived, either by express agreement of the co-owners, or by one having given the other a right of first refusal, etc.

The second phase of a partition action includes the sale of the property, a referee's report on the results and recommendations on the parties' rights to proceeds, reimbursement for excess expenditures during co-ownership by one or the other, and ends with division of the net proceeds by final judgment.

It is very important to understand that merely bringing a partition suit will often cause a reluctant owner to see the handwriting on the wall and agree to an early out-of-court settlement. Further, in my experience most partition sales are done by the parties' agreement upon listing and sale through a broker by ordinary commercial means, and there is no courthouse-steps auction. One frequent scenario is for the parties to concede that the property can be partitioned by consenting to the entry of an interlocutory judgment, then they refer the remaining issues to arbitration.

I think most litigated partition cases will run over $10K.