Partition Actions Attorneys in San Jose, California

Co-owners of a piece of property may reach an impasse over its usage. For instance, three children may inherit some acreage and argue over what to do with it. If no party is willing to budge, then one co-owner may decide to take the issue to court and force a partition action.

In California, it’s not unusual for disputes over the ownership and use of land to end up in court. One cotenant, as a co-owner is described under state law, may initiate a petition for partition. Once the petition makes its way through the court system, provided there are no settlements or agreements reached before a decision is rendered, there are three possible outcomes, though one is rarely used.

The two most common courtroom decisions result in what are called division by kind and division by sale. By kind means to divide the property into equal portions. By sale means just that – to sell the property and divide the proceeds.

A third option, called division by appraisal, allows the court to grant title to the property to one cotenant who then must pay off the other cotenants. This option is the one that is most infrequently invoked.

If you’re involved in a dispute over land or property usage in or around San Jose, California, contact Mosaic Law, P.C. Our real estate attorneys are experienced in all manners of property disputes and resolutions. We can help you reach a resolution, whether it involves negotiations or a petition for partition.  

We proudly serve clients not only in and around San Jose but also throughout South County, the Santa Clara Valley, and the Santa Cruz Mountains.

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What Is a Partition?

Using the above example of children who inherit a parcel of land, partition comes into the picture when they can’t agree on how to use the land. One inheritor may wish to use the land for a warehouse, another to subdivide it into apartment dwellings, and another to use it for agriculture. If the parcel is big enough to accommodate all three objectives, the cotenants may agree by themselves to a partition. This is known as intentional partition.

If there is no agreement, one cotenant may decide to enlist an attorney to help resolve matters. Mediation and negotiations may ensue, and a resolution eventually found. If not, one party may opt to file a petition for partition in court.

However, when it comes to inherited property, California in 2021 enacted the Uniform Partition of Heirs Property Act. This legislation gives the cotenants the option to buy out the co-owner who seeks a different direction for the property. The law states: “If a cotenant requests partition by sale, the bill would give co-owners who did not request the partition the option to buy all of the interests of the co-owners that requested partition by sale, as specified.”

Obviously, if the heirs inherit just a single-family residence, a division in kind – equal distribution – would not be a realistic option. So, the new law makes it possible for the new cotenant to resolve matters in a more expedited manner.

Types of Partitions

As mentioned briefly above, there are three types of court-ordered partitions available – by kind, by sale, and by appraisal:

PARTITION IN KIND: Also known as partition by physical division, this allows the court to divide the land by proportionate value. This type of partition involves acreage such as rural property or undeveloped land. The court will not use this method if it results in one or more cotenants receiving a portion that is smaller in value than what would be obtained through a partition by sale. The court is further obligated to consider local ordinances and zoning laws and to comply with the Subdivision Map Act.

PARTITION BY SALE: One cotenant can petition for the property to be sold and the proceeds divided. Each co-owner, barring a waiver signed in the purchase of the property, has an absolute right to force a sale. The court must weigh whether a division by sale would be more equitable than a partition in kind. California law requires that the court must divide California real estate equitably among its co-owners. If a sale is ordered, it could be completed through a public auction or private sale. A referee may be named, and a licensed real estate broker may be enlisted.

PARTITION BY APPRAISAL: A partition by appraisal is available only if all cotenants agree. The property is appraised by a third party, and the cotenants wishing to retain the property can then buy out the objecting cotenant. This is the least used application of partition law.

The Partition Court Process

An objecting cotenant must file a petition for partition in court, naming all cotenants along with lienholders, lenders, and holders of future estates. All must be served notice of the legal action. The partition request then proceeds like any civil lawsuit except there is no right to a jury trial. The decision will be rendered by the judge as assisted by a referee he or she may appoint.

Partition Actions Attorneys Serving
San Jose, California

You probably want to avoid the costs of a courtroom battle, so it is in all parties’ best interests to resolve matters outside of court. Negotiations and mediation overseen by a knowledgeable real estate attorney can help resolve the issue before a petition needs to be filed. If you’re involved in a usage dispute over property in or around San Jose, California, contact Mosaic Law, P.C. Reach out today to schedule a free consultation.