The Partition Process, Step by Step

Overview

A California partition action follows a defined sequence set out in the Code of Civil Procedure. The court first decides who owns what and how the property will be partitioned, then a referee carries out the division or sale under court supervision. For cases covered by the Partition of Real Property Act, the court also determines the property's value and offers a buyout before ordering a sale. ^{1, 2, 3}

There is no official "typical" timeline for a partition case. Length depends on how many owners there are, whether ownership shares are disputed, whether the parties settle, and the court's calendar.

The path of a partition case

1. 1

   Title report (optional)

   Plaintiff may get a title report before filing; its cost is a cost of partition ^{4, 5}

2. 2

   Complaint

   Describes the property and all known interests, and asks for division or sale ⁶

3. 3

   Lis pendens

   Notice of the pending action recorded with the county recorder immediately on filing ⁷

4. 4

   Service

   All persons with known or record interests are named and served ^{8, 9}

5. 5

   Answers

   Defendants respond and can raise claims for contribution or other adjustments ¹⁰

6. 6

   Valuation (Partition of Real Property Act cases)

   Court determines fair market value, usually by appraisal ³

7. 7

   Buyout (Partition of Real Property Act cases)

   Co-owners who didn't request a sale have 45 days to elect to buy out those who did ¹¹

8. 8

   Interlocutory judgment

   Court determines the parties' interests and orders partition and, unless decided later, its manner ¹

9. 9

   Referee appointed

   Court appoints a referee to divide or sell ²

10. 10

    Division or sale

    Referee divides the property, or sells it (often through a broker) and reports the sale for confirmation ^{12, 13}

11. 11

    Distribution

    Proceeds pay sale expenses, costs of partition, liens, and then the owners ¹⁴

Step by step

Before filing

Many co-owners try to negotiate first, and a written agreement on terms of sale is binding on the court: the court will order a sale by the methods and terms all parties expressly agree to in writing. ¹⁵ Before filing, the plaintiff may also order a title report to identify everyone with an interest in the property. ⁴

Filing the complaint

Partition actions are filed in the superior court of the county where the property is located. ¹⁶ In San Francisco, civil filings are handled by the Civil Clerk's Office at the Civic Center Courthouse, 400 McAllister Street, Room 103. ¹⁷ The complaint must describe the property (legal description and street address), the plaintiff's interest, all interests of record or known to the plaintiff, the estate to be partitioned, and, if a sale is sought, the facts that justify a sale. ⁶

Recording the lis pendens

Immediately after filing, the plaintiff must record a notice of the pending action (lis pendens) with the county recorder. ⁷ In San Francisco, documents are recorded with the Assessor-Recorder. ¹⁸

Naming and serving everyone with an interest

The plaintiff must join as defendants all persons with interests of record, known to the plaintiff, or reasonably apparent from inspecting the property. ⁸ Summons is served as in other civil cases. ⁹

Valuation and buyout (Partition of Real Property Act)

For tenancy-in-common property without a written agreement governing partition, filed on or after January 1, 2023: ¹⁹

1. The court determines the property's fair market value. If all co-owners agree on a value or method, the court adopts it. Otherwise the court usually appoints a disinterested licensed appraiser, sends notice of the appraisal within 10 days of filing, allows 30 days for objections, and holds a hearing on value. ³
2. If any co-owner requested a sale, the court notifies the parties of the buyout right. Co-owners who did not request a sale have 45 days to elect to buy out the interests of those who did. ¹¹
3. The price for each interest is the court-determined value of the whole property multiplied by that owner's fractional share. ¹¹
4. If co-owners elect to buy, the court sets a payment date at least 60 days after notice. ¹¹
5. If no buyout happens, the court decides between partition in kind and partition by sale, using the factors in §874.319. ^{20, 21}

Interlocutory judgment

When the court finds the plaintiff is entitled to partition, it makes an interlocutory judgment determining the parties' interests and ordering partition, including the manner of partition unless that is to be decided later. ¹ Under the general statutes, the court orders a sale if the parties agree or if a sale and division of the proceeds would be more equitable than physical division. ²²

The referee

The court appoints a referee to divide or sell the property, sets the referee's compensation, and can remove or replace the referee. ² If all parties agree on a referee, the court appoints that person. ²³ Certain people cannot serve, including owners of an interest in the property. ²⁴ In cases under the Partition of Real Property Act, the referee must be disinterested and impartial. ²⁵ With court approval, the referee can hire appraisers, attorneys and real estate brokers. ¹²

Sale and court confirmation

The referee sells the property at public auction or private sale, whichever the court determines is more beneficial, and reports the sale to the court for confirmation. ^{13, 26} See Selling a Property in a Partition for how sales, overbids and commissions work.

Distribution of proceeds

Sale proceeds are applied in this order: expenses of sale, other costs of partition, liens, and then distribution of the remainder to the owners according to their interests. ¹⁴ The court can also order accounting, contribution or other compensatory adjustments among the owners according to principles of equity. ²⁷

Where partition cases are heard in San Francisco

Law and motion matters in San Francisco civil cases arising from ownership or possession of real property are heard in the Real Property Court (Department 501). ²⁸ Tentative rulings for law and motion departments are posted online. ²⁹

Sources

1. California Code of Civil Procedure §872.720leginfo.legislature.ca.gov
2. California Code of Civil Procedure §873.010leginfo.legislature.ca.gov
3. California Code of Civil Procedure §874.316leginfo.legislature.ca.gov
4. California Code of Civil Procedure §872.220leginfo.legislature.ca.gov
5. California Code of Civil Procedure §874.010leginfo.legislature.ca.gov
6. California Code of Civil Procedure §872.230leginfo.legislature.ca.gov
7. California Code of Civil Procedure §872.250leginfo.legislature.ca.gov
8. California Code of Civil Procedure §872.510leginfo.legislature.ca.gov
9. California Code of Civil Procedure §872.310leginfo.legislature.ca.gov
10. California Code of Civil Procedure §872.430leginfo.legislature.ca.gov
11. California Code of Civil Procedure §874.317leginfo.legislature.ca.gov
12. California Code of Civil Procedure §873.110leginfo.legislature.ca.gov
13. California Code of Civil Procedure §873.710leginfo.legislature.ca.gov
14. California Code of Civil Procedure §873.820leginfo.legislature.ca.gov
15. California Code of Civil Procedure §873.600leginfo.legislature.ca.gov
16. California Code of Civil Procedure §872.110leginfo.legislature.ca.gov
17. San Francisco Superior Court, Civil Divisionsf.courts.ca.gov
18. SF Assessor-Recorder, "Recording a document"sf.gov
19. California Code of Civil Procedure §874.311leginfo.legislature.ca.gov
20. California Code of Civil Procedure §874.318leginfo.legislature.ca.gov
21. California Code of Civil Procedure §874.319leginfo.legislature.ca.gov
22. California Code of Civil Procedure §872.820leginfo.legislature.ca.gov
23. California Code of Civil Procedure §873.040leginfo.legislature.ca.gov
24. California Code of Civil Procedure §873.050leginfo.legislature.ca.gov
25. California Code of Civil Procedure §874.315leginfo.legislature.ca.gov
26. California Code of Civil Procedure §873.520leginfo.legislature.ca.gov
27. California Code of Civil Procedure §872.140leginfo.legislature.ca.gov
28. San Francisco Superior Court, Real Property Courtsf.courts.ca.gov
29. San Francisco Superior Court, Tentative Rulingssf.courts.ca.gov