What Is a Partition Action in California? Co-Owned Property Explained

The definition

A partition action is a lawsuit that ends co-ownership of property. The court determines each owner's interest and then either divides the property or orders it sold and divides the proceeds. ^{1, 2} In California, partition of real property is governed by Title 10.5 of the Code of Civil Procedure, starting at section 872.010. ¹

How co-ownership works in California

Partition only comes up when property is owned by more than one person at the same time. The two most common forms of co-ownership are:

Form	What the law says	What it means in practice
Tenancy in common	An interest owned by several persons, not in joint ownership or partnership. It is the default form of co-ownership unless the deed says otherwise. ^{3, 4}	Owners can hold unequal shares.
Joint tenancy	An interest owned by two or more persons in equal shares, created by a single transfer that expressly declares a joint tenancy. ⁵	Owners hold equal shares, and when one owner dies, the surviving owner gets the property. ¹⁹ One joint tenant can sever the joint tenancy alone. ⁶

Married couples and registered domestic partners can also hold property as community property, which is handled differently (see "Who cannot use partition" below).

Who can file for partition

A co-owner of real property owned by several people concurrently, or in successive estates, can file. ⁷ That includes owners of an estate of inheritance, a life estate, or an estate for years.

Partition is a right, not a privilege

For co-owners holding at the same time, partition is "as of right" unless it is barred by a valid waiver. ⁸ In practice, that means one co-owner can generally force the issue even if the others want to keep the property. The court's main questions are usually how to partition, not whether to.

Waivers in co-ownership agreements

Some co-owners sign agreements that limit or waive the right to partition, such as the co-ownership agreements used in many tenancy-in-common (TIC) buildings. A valid waiver can bar partition. ⁸ A written agreement governing partition also takes a property outside the Partition of Real Property Act described below. ¹¹ Whether a particular waiver is valid is a legal question for an attorney.

Who cannot use partition

Spouses and putative spouses cannot use a partition action to divide their community or quasi-community property. ⁷ Those issues are handled in family court.

The three forms of partition

Form	What happens	When it's used
Partition in kind	The property is physically divided among the owners according to their interests.	This is the default under the general partition statutes. ⁹
Partition by sale	The property is sold and the proceeds are divided.	When the parties agree, or the court determines a sale and division of proceeds would be more equitable than physical division. ²
Partition by appraisal	Appraisers value the property and the parties divide it by agreement.	Only when the parties agree, after all interests are undisputed or decided. ¹⁰

For most San Francisco properties (a single house, a condo, or a building on one lot), physical division is rarely practical, so many partition cases end in a sale or a buyout.

The Partition of Real Property Act (2023)

California added new rules for many partition cases filed on or after January 1, 2023. The Partition of Real Property Act (Code of Civil Procedure §874.311 and following) applies to real property held in tenancy in common where there is no written agreement binding all co-owners that governs partition. ¹¹

Under the Act:

The court determines the property's value first, usually through a court-ordered appraisal by a disinterested licensed appraiser, unless all co-owners agree on a value or a method. ¹²
Co-owners who did not ask for a sale get a buyout right. Within 45 days of notice, they can elect to buy the interests of the co-owners who requested a sale, at the court-determined value times each seller's fractional share. ¹³
The court prefers partition in kind unless it would result in great prejudice to the co-owners as a group. ¹⁴ The court weighs factors such as whether the property can practically be divided, whether division would reduce its value, how long the family has owned it, sentimental attachment, and each owner's contributions to taxes and upkeep. ¹⁵
If the property is sold, the default is an open-market sale through a licensed real estate broker, at a price no lower than the court-determined value, unless the court finds sealed bids or an auction would be more economically advantageous. ¹⁶

The Act shares its main features (court valuation, a co-owner buyout right, a preference for division, and an open-market sale) with the Uniform Law Commission's model Partition of Heirs Property Act. The model act applies only to inherited ("heirs") property, while California's Act applies to tenancy-in-common property generally. ^{11, 17}

Partition in other courts

Probate: if two or more beneficiaries of an estate will receive undivided interests in a property and cannot agree, any of them can ask the probate court to partition it before distribution. ¹⁸
Family court: spouses' community property is divided in dissolution proceedings, not a partition action. ⁷

When you need professional help

A real estate litigation attorney to evaluate your ownership, any waivers, and your options before you file or respond.
A real estate broker experienced with court-supervised sales if a sale is likely. Partition sales involve a referee, court approval and sometimes overbids. See Selling a Property in a Partition.
A mediator if the co-owners are open to settlement. See Buyouts and Alternatives.

Sources

California Code of Civil Procedure §872.020leginfo.legislature.ca.gov
California Code of Civil Procedure §872.820leginfo.legislature.ca.gov
California Civil Code §685leginfo.legislature.ca.gov
California Civil Code §686leginfo.legislature.ca.gov
California Civil Code §683leginfo.legislature.ca.gov
California Civil Code §683.2leginfo.legislature.ca.gov
California Code of Civil Procedure §872.210leginfo.legislature.ca.gov
California Code of Civil Procedure §872.710leginfo.legislature.ca.gov
California Code of Civil Procedure §872.810leginfo.legislature.ca.gov
California Code of Civil Procedure §873.910leginfo.legislature.ca.gov
California Code of Civil Procedure §874.311leginfo.legislature.ca.gov
California Code of Civil Procedure §874.316leginfo.legislature.ca.gov
California Code of Civil Procedure §874.317leginfo.legislature.ca.gov
California Code of Civil Procedure §874.318leginfo.legislature.ca.gov
California Code of Civil Procedure §874.319leginfo.legislature.ca.gov
California Code of Civil Procedure §874.320leginfo.legislature.ca.gov
Uniform Law Commission, Partition of Heirs Property Actuniformlaws.org
California Probate Code §11950leginfo.legislature.ca.gov
California Courts Self-Help Guide, "When formal probate may not be needed"selfhelp.courts.ca.gov

What Is a Partition Action?