Legal Question in Real Estate Law in California

Re: Tenants in Common and Partition Lawsuit

I'm not entirely sure what you mean by "criteria" to file a partition suit. I'll try to provide some helpful pointers; then feel free to contact me for more specific assistance.

Partition is a right of co-owners of property. Partition is usually used to divide real property (real estate) when co-owners no longer are happy with co-ownership and "want out," but partition can also be used to divide personal property (boats, airplanes, vehicles, bank accounts, etc.). This is much less usual.

Partition is a right. There are very few defenses that can be raised by one co-owner against another co-owner seeking partition. The most frequently successful defense is waiver. An owner may claim the other owner has waived the right to partition by, for example, entering into a development contract for the property, by giving a right of first refusal or an option to the other owner, or by expressly agreeing not to try to partition the property.

Partition used to be done by subdividing into units of equal value, with cash adjustments (called "owelty") if necessary to give each former co-owner a fair slice of the pie.

Nowadays, it is more usual to have the property sold by a real estate firm and the net proceeds of sale divided. This is called partition by sale. The suit should specify which method is desired, and why.

The mechanics of a partition suit start with those applicable to any lawsuit, i.e., setting forth a claim on pleading paper addressed to the proper court, naming the proper parties, and accompanied by a summons and civil case cover sheet. There is more to it, however. The suit should name all known and unknown claimants, including, for example, lenders, as co-defendants. A lis pendens must be prepared, served, filed and recorded following fairly rigid procedures. It is advisable to obtain a litigation guarantee from a local title company.

The suit must set forth with particularity the interests held by the various parties, and the interests to be partitioned.

Re: Tenants in Common and Partition Lawsuit

Your reference to "criteria" is rather confusing, but here are some pooints for your consideration.

As co-owners, you both have the right to possession of the entire house. Co-ownership can often make the co-owners reluctant roommates. Each of you also has a near-absolute right to force a sale (or split) of the property through a specialized kind of lawsuit called "partition."

Partition lawsuits are very difficult without the assistance of an attorney. If your fellow owner(s) decide to fight the lawsuit and take matter to trial, it can become expensive and take a long time. When faced with a partition lawsuit, the once-unwilling owner often becomes much more willing to negotiate an out-of-court solution.

Sometimes the solution is a buy-out; other times, the parties agree on a sale, in which case, if there is an on-going dispute over how much money each is entitled to (the net proceeds in a partition sale are divided the same as the ownership percentages AFTER adjustments for excess outlays made by one co-owner for mortgage payments, property taxes, insurance, necessary repairs, etc. and for rents received by the owner in possession from third-party tenants), the owners may wish to agree to have that handled by post-sale arbitration.

If all else fails, you can hire a lawyer to prepare and file the lawsuit, but you should instruct the lawyer to keep pressing for a negotiated settlement.

My office is nearby, so feel free to contact me if you wish to discuss the matter further.

Re: Tenants in Common and Partition Lawsuit

Normally a dispute amount the use of property is cause for a partition action. Most of these cases settle before trial because of the expense and loss of value of having the court order selling the property.

Re: Tenants in Common and Partition Lawsuit

If one owner decides that they wish to sell then they have the right to a partition action. It requires a complaint and hearings. For assistance call me or e-mail me directly.