Land is the most expensive thing most people will ever own. This is particularly true in California, with the heavy demand for it due to the state’s beautiful scenery and mild climate. It is so expensive that there are circumstances where the only way people can afford to buy it in the quantities and locations they seek is to pool their resources with other people, particularly in the case of business partnerships. Unfortunately, not all business partnerships work out. Sometimes people in partnerships disagree and sometimes these disagreements can not be resolved amicably. Under these circumstances, on or more of the co-owners may end up asking the court to partition the property, or to divide it among its owners.
Types
There are two types of partition actions: voluntary and legal. In a voluntary partition, the parties agree among themselves that they will partition land and how they will do so. If they can’t agree among themselves, it is likely they will seek the second type of partition, a legal partition. In this type of partition, co-owners of land ask a court to divide their property.
Parties
A party with just about any ownership interest in property can ask a California court for a partition, with two important exception: spouses or domestic partners that have registered with the state with community property cannot divide their property in a partition action. This is considered a matter of family law and is usually dealt with in a divorce proceeding. However, property owned jointly by spouses or domestic partners before they were married are subject to partition actions. Partition is also not available where the parties have agreed not to seek partition for a “reasonable” time and this time has not yet elapsed. The interest need not be fee simple absolute or ownership forever but can also be life estates, or ownership for a person’s lifetime or an estate for years, which is ownership for a particular number of years.
Process
In order to partition property, an owner will need to file a complaint in the county in where the property is located. The complaint must include a description of the property and the interests of the owners. Then the party asking for the partition must file a Notice of Pendency, which notifies anyone with an interest in the property of a legal action involving it, in the County Recorder’s Office. The court may order this done if the party filing for partition fails to do it. This notice will only be rescinded after the property is divided or the complaint is dropped. A judge will hear the case and either grant or deny the petition. He may order all or only a part of the property divided. If he grants partition, he will appoint a referee to divide the property. A partition suit can result in the property either being divided in kind or sold and the proceeds being divided among the owners. If an owner asks for sale, he must give facts that would justify the sale in the complaint. Both personal and real property can be partitioned and both can be included in the same complaint.