TITLE 10.5. PARTITION OF REAL AND PERSONAL PROPERTY [872.010. - 874.323.]
Title 10.5 added by Stats. 1976, Ch. 73.
§§ 872.010–874.323 · 119 sections
CHAPTER 1. General Provisions §§ 872.010–872.140 · 8 sections
ARTICLE 1. Preliminary Provisions §§ 872.010–872.040 · 4 sections
- § 872.010 As used in this title: (a) “Action” means an action for partition under this title. (b) “Lien” means a mortgage, deed of trust, or other security interest in…
- § 872.020 This title governs actions for partition of real property and, except to the extent not applicable, actions for partition of personal property.
- § 872.030 The statutes and rules governing practice in civil actions generally apply to actions under this title except where they are inconsistent with the provisions…
- § 872.040 Nothing in this title excuses compliance with any applicable laws, regulations, or ordinances governing the division, sale, or transfer of property.
ARTICLE 2. Powers of Court §§ 872.110–872.140 · 4 sections
- § 872.110 (a) The superior court has jurisdiction of actions under this title. (b) Subject to the power of the court to transfer actions, the proper county for the trial…
- § 872.120 In the conduct of the action, the court may hear and determine all motions, reports, and accounts and may make any decrees and orders necessary or incidental…
- § 872.130 In the conduct of the action, the court may issue temporary restraining orders and injunctions, with or without bond, for the purpose of: (a) Preventing waste.…
- § 872.140 The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of…
CHAPTER 2. Commencement of Action §§ 872.210–872.550 · 16 sections
ARTICLE 1. Complaint and Lis Pendens §§ 872.210–872.250 · 5 sections
- § 872.210 (a) A partition action may be commenced and maintained by any of the following persons: (1) A coowner of personal property. (2) An owner of an estate of…
- § 872.220 If it is necessary to have a title report: (a) The plaintiff may, prior to commencing the action, procure a title report and shall in the complaint indicate…
- § 872.230 The complaint shall set forth: (a) A description of the property that is the subject of the action. In the case of tangible personal property, the description…
- § 872.240 Real and personal property may be partitioned in one action.
- § 872.250 (a) Immediately upon filing the complaint, the plaintiff shall record a notice of the pendency of the action in the office of the county recorder of each…
ARTICLE 2. Summons §§ 872.310–872.330 · 3 sections
- § 872.310 (a) The form, content, and manner of service of summons shall be as in civil actions generally. (b) Service on persons named as parties pursuant to Sections…
- § 872.320 Where the court orders service by publication, such order shall be subject to the following conditions: (a) The plaintiff shall post, not later than 10 days…
- § 872.330 (a) Where the court orders service by publication, the publication may: (1) Name only the defendants to be served thereby. (2) Describe only the property in…
ARTICLE 3. Answer §§ 872.410–872.430 · 3 sections
- § 872.410 The answer shall set forth: (a) Any interest the defendant has or claims in the property. (b) Any facts tending to controvert such material allegations of the…
- § 872.420 Where the defendant has or claims a lien on the property, the answer shall set forth the date and character of the lien and the amount remaining due thereon.
- § 872.430 The answer may set forth any claim the defendant has for contribution or other compensatory adjustment.
ARTICLE 4. Parties §§ 872.510–872.550 · 5 sections
- § 872.510 The plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably…
- § 872.520 (a) If the name of a person described in Section 872.510 is not known to the plaintiff, the plaintiff shall so state in the complaint and shall name as parties…
- § 872.530 (a) If a person described in Section 872.510 is dead and the plaintiff knows of a personal representative, the plaintiff shall join such personal…
- § 872.540 Where property is subject to a lease, community lease, unit agreement, or other pooling arrangement with respect to oil or gas or both, the plaintiff need not…
- § 872.550 Where partition is sought as to all interests in the property, the plaintiff may join as defendants “all persons unknown claiming any interest in the…
CHAPTER 3. Trial §§ 872.610–872.840 · 11 sections
ARTICLE 1. Determination of Interests of Parties §§ 872.610–872.640 · 4 sections
- § 872.610 The interests of the parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the action.
- § 872.620 To the extent necessary to grant the relief sought or other appropriate relief, the court shall upon adequate proof ascertain the state of the title to the…
- § 872.630 (a) To the extent necessary to grant the relief sought or other appropriate relief, the court shall determine the status and priority of all liens upon the…
- § 872.640 Where two or more parties are unknown, the court may consider their interests together in the action and not as between each other.
ARTICLE 2. Determination of Right to Partition §§ 872.710–872.730 · 3 sections
- § 872.710 (a) At the trial, the court shall determine whether the plaintiff has the right to partition. (b) Except as provided in Section 872.730, partition as to…
- § 872.720 (a) If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the…
- § 872.730 To the extent that the court determines that the provisions of this title are a suitable remedy, such provisions may be applied in a proceeding for partnership…
ARTICLE 3. Determination of Manner of Partition §§ 872.810–872.840 · 4 sections
- § 872.810 The court shall order that the property be divided among the parties in accordance with their interests in the property as determined in the interlocutory…
- § 872.820 Notwithstanding Section 872.810, the court shall order that the property be sold and the proceeds be divided among the parties in accordance with their…
- § 872.830 If, in making a determination whether sale would be more equitable than division of the property, the court finds that sale and division of proceeds for part…
- § 872.840 (a) Where the property or an interest therein is subject to an express trust, the court may, in its discretion, order that the property be sold. (b) Upon…
CHAPTER 4. Referees §§ 873.010–873.160 · 14 sections
ARTICLE 1. General Provisions §§ 873.010–873.080 · 8 sections
- § 873.010 (a) The court shall appoint a referee to divide or sell the property as ordered by the court. (b) The court may: (1) Determine whether a referee’s bond is…
- § 873.020 The court in its discretion may appoint a referee for sale and a referee for division, or may appoint a single referee for both.
- § 873.030 (a) The court may, with the consent of the parties, appoint three referees to divide or sell the property as ordered by the court. (b) The three referees so…
- § 873.040 (a) The court shall appoint as referee under this title any person or persons to whose appointment all parties have consented. (b) In the case of a minor party…
- § 873.050 None of the following persons shall be appointed a referee under this title: (a) A clerk or deputy clerk of the court. (b) A former or present partner or…
- § 873.060 The referee may perform any acts necessary to exercise the authority conferred by this title or by order of the court.
- § 873.070 The referee or any party may, on noticed motion, petition the court for instructions concerning the referee’s duties under this title.
- § 873.080 (a) In selling or dividing the property, the referee may, if it will be for the advantage of those interested, designate a portion of the property as a public…
ARTICLE 2. Contracts of Referee §§ 873.110–873.160 · 6 sections
- § 873.110 Subject to the limitations of this article, the court may: (a) Authorize or approve contracts of the referee for the services and expenses of surveyors,…
- § 873.120 (a) The referee may employ an attorney only with the approval of the court pursuant to Section 873.110. (b) The application for approval shall be in writing…
- § 873.130 The referee may, with the approval of the court pursuant to Section 873.110, employ a surveyor with the necessary assistants to aid in making a sale or…
- § 873.140 The referee may, with the approval of the court pursuant to Section 873.110, employ an auctioneer, authorized to act as such in the locality, to conduct a…
- § 873.150 A contract for the services of an attorney, surveyor, auctioneer, or other third person may provide for the accrual of interest at a rate not in excess of the…
- § 873.160 The referee is not personally liable on contracts made, or for expenses incurred, except as such liability is expressly assumed by the referee in writing.
CHAPTER 5. Division of the Property §§ 873.210–873.290 · 9 sections
- § 873.210 The referee appointed by the court to make a division of the property shall divide the property and allot the several portions to the parties, quality and…
- § 873.220 As far as practical, and to the extent it can be done without material injury to the rights of the other parties, the property shall be so divided as to allot…
- § 873.230 Where prior to the commencement of the action a party has executed a deed purporting to convey to a purchaser a portion of the property to be divided, to the…
- § 873.240 Where real property consists of more than one distinct lot or parcel, the property shall be divided by such lots or parcels without other internal division to…
- § 873.250 (a) Where division cannot be made equally among the parties according to their interests without prejudice to the rights of some, compensation may be required…
- § 873.260 Where a lien is on an undivided interest of a party, the lien shall, upon division of the property, become a charge only on the share allotted to that party.
- § 873.270 Where the court has determined the combined interests of two or more unknown parties, the entire portion of the property allocated to such parties shall remain…
- § 873.280 (a) The referee shall file with the court a report of the referee’s proceedings and give written notice of filing to each party who has appeared in the action.…
- § 873.290 (a) Any party, upon notice to the other parties who have appeared, may move the court to confirm, modify, or set aside the report. (b) At the hearing, the…
CHAPTER 6. Sale of the Property §§ 873.510–873.850 · 28 sections
ARTICLE 1. Manner of Sale §§ 873.510–873.530 · 3 sections
- § 873.510 The referee appointed by the court to make a sale of the property shall sell the property in the manner and following the procedures provided in this chapter.
- § 873.520 The property shall be sold at public auction or private sale as the court determines will be more beneficial to the parties. For the purpose of making this…
- § 873.530 Part of the property may be sold at public auction and part at private sale if it appears that to do so will be more beneficial to the parties.
ARTICLE 2. Sales Procedures §§ 873.600–873.690 · 10 sections
- § 873.600 Notwithstanding any other provision of this title, the court shall order sale by such methods and upon such terms as are expressly agreed to in writing by all…
- § 873.610 (a) The court may, at the time of trial or thereafter, prescribe such manner, terms, and conditions of sale not inconsistent with the provisions of this…
- § 873.620 (a) Unless the interests and rights of the parties will be materially prejudiced thereby, the court shall order that distinct lots or parcels of real property…
- § 873.630 The court may: (a) Direct a sale on credit for the property or any part thereof. (b) Prescribe such terms of credit as may be appropriate. (c) Approve or…
- § 873.640 (a) Notice of the sale of real or personal property shall be given in the manner required for notice of sale of like property upon execution. Such notice shall…
- § 873.650 (a) The court shall prescribe the contents of the notice of sale, which shall include a description of the property, the time and place of sale, and a…
- § 873.660 (a) The court may order securities listed on an established stock or bond exchange, and personal property that is perishable, that will depreciate in value if…
- § 873.670 (a) A sale at public auction to the highest bidder shall be held in the county in which the action is pending or such other place as may be specified by the…
- § 873.680 (a) A sale at private sale shall not be made before the day specified in the notice of sale but shall be made within one year thereafter. (b) The bids or…
- § 873.690 (a) The following persons shall not purchase property sold in the action directly or indirectly: (1) The referee. (2) The attorney of a party. (3) The guardian…
ARTICLE 3. Consummation of Sale §§ 873.710–873.790 · 10 sections
- § 873.710 (a) Upon making a sale of property, the referee shall report the sale to the court. (b) The referee’s report shall contain, in addition to such other…
- § 873.720 (a) A purchaser, the referee, or any party may move the court to confirm or set aside the sale. (b) The moving party shall give not less than 10 days’ notice…
- § 873.730 (a) At the hearing, the court shall examine the report and witnesses in relation to the report. (b) The court may confirm the sale notwithstanding a variance…
- § 873.740 (a) If at the hearing under Section 873.730 a responsible bidder makes a written increased offer that exceeds the sale price by at least 10 percent on the…
- § 873.745 The amount of agents’ commissions on the sale, if any, shall be fixed by the court and divided or limited in the manner provided for private sales of real…
- § 873.750 (a) Upon confirmation of a sale, the court shall order the referee to execute a conveyance or other instrument of transfer, to collect the proceeds, take…
- § 873.760 If the purchaser, after the confirmation of the sale, fails to pay the sale price, the purchaser is subject to the court’s jurisdiction and to further…
- § 873.770 Where the purchaser is a party or lienholder entitled to a share of the proceeds of sale, the referee may: (a) Take the purchaser’s receipt for so much of the…
- § 873.780 The court may make orders relating to the closing of a sale after confirmation, including escrow and closing provisions and, if the referee and purchaser so…
- § 873.790 (a) Upon fulfillment of the terms of sale, the referee shall execute a conveyance or other instrument of transfer to the purchaser. (b) The conveyance or…
ARTICLE 4. Disposition of Proceeds of Sale §§ 873.810–873.850 · 5 sections
- § 873.810 The court shall order the proceeds of sale and any security therefor to be paid, transferred, deposited in court, placed in trust, or invested in State of…
- § 873.820 The proceeds of sale for any property sold shall be applied in the following order: (a) Payment of the expenses of sale. (b) Payment of the other costs of…
- § 873.830 Where a part only of the property is sold, a tenant for life or years in an undivided share of the whole property may have his estate equitably set off in any…
- § 873.840 (a) The court shall ascertain the proportion of the proceeds of sale that will be a just and reasonable sum for the satisfaction of the estate of a tenant for…
- § 873.850 When the proceeds of the sale belonging to persons who are parties to the action, whether known or unknown, have not been allocated among such parties, the…
CHAPTER 7. Partition by Appraisal §§ 873.910–873.980 · 8 sections
- § 873.910 When the interests of all parties are undisputed or have been adjudicated, the parties may agree upon a partition by appraisal pursuant to this chapter.
- § 873.920 The agreement shall be in writing filed with the clerk of court and shall include: (a) A description of the property. (b) The names of the parties and their…
- § 873.930 (a) Any party to the agreement may, upon noticed motion, apply to the court for approval of the agreement. (b) If the court determines that the agreement…
- § 873.940 The court shall appoint one referee or, if provided in the agreement, three referees to appraise the property and the interests involved. The referee shall…
- § 873.950 Any party to the agreement or the referee, upon 10 days’ notice to the referee if the referee is not the moving party and to the other parties to the…
- § 873.960 At the hearing, the court shall examine the report and witnesses. If the court determines that the proceedings have been regularly conducted, that transfer of…
- § 873.970 The agreement binds the heirs, executors, administrators, successors, and assigns of the parties. In the event of default, the aggrieved parties may…
- § 873.980 The provisions of this chapter are cumulative and if, for default or other cause, interests are not transferred and acquired pursuant to this chapter, the…
CHAPTER 8. Costs of Partition §§ 874.010–874.140 · 9 sections
ARTICLE 1. Allowance and Apportionment of Costs of Partition §§ 874.010–874.050 · 5 sections
- § 874.010 The costs of partition include: (a) Reasonable attorney’s fees incurred or paid by a party for the common benefit. (b) The fee and expenses of the referee. (c)…
- § 874.020 The costs of partition include reasonable expenses, including attorney’s fees, necessarily incurred by a party for the common benefit in prosecuting or…
- § 874.030 Where disbursements have been made by a party under the direction of the court, interest at the legal rate shall be allowed thereon from the time of making…
- § 874.040 Except as otherwise provided in this article, the court shall apportion the costs of partition among the parties in proportion to their interests or make such…
- § 874.050 (a) The court may order that the share of the costs apportioned to a future interest be paid by other parties to the action or by the persons who are then the…
ARTICLE 2. Payment of Costs of Partition §§ 874.110–874.140 · 4 sections
- § 874.110 (a) The costs of partition as apportioned by the court may be ordered paid in whole or in part prior to judgment. (b) Any costs that remain unpaid shall be…
- § 874.120 (a) The costs shall be a lien on the share of the party specified. (b) A lien imposed by this section has priority over any other lien on the share except…
- § 874.130 Upon application of a person entitled to a lien imposed under this article and upon a showing of good cause, the court may order a sale of all or a portion of…
- § 874.140 A judgment for unpaid costs of partition may be enforced by the person entitled to the costs in the manner provided for enforcement of money judgments…
CHAPTER 9. Judgment §§ 874.210–874.240 · 3 sections
- § 874.210 The judgment in the action is binding and conclusive on all of the following: (a) All persons known and unknown who were parties to the action and who have or…
- § 874.225 Except to the extent provided in Section 1908, the judgment does not affect a claim in the property or part thereof of any person who was not a party to the…
- § 874.240 A conveyance or transfer pursuant to Sections 873.750 and 873.790 or Section 873.960 is binding and conclusive, in the same manner as a judgment.
CHAPTER 10. Partition of Real Property Act §§ 874.311–874.323 · 13 sections
- § 874.311 (a) This act shall be known, and may be cited, as the Partition of Real Property Act. (b) This act applies to real property held in tenancy in common where…
- § 874.312 For purposes of this chapter, the following definitions apply: (a) “Determination of value” means a court order determining the fair market value of the…
- § 874.313 (a) In an action to partition real property, the property shall be partitioned under this chapter unless all of the cotenants otherwise agree in a record. (b)…
- § 874.314 (a) This act does not limit or affect the method by which service of a complaint in a partition action may be made. (b) If the plaintiff in a partition action…
- § 874.315 If the court appoints referees pursuant to Section 873.010, each referee, in addition to any other requirements and disqualifications applicable to referees,…
- § 874.316 (a) Except as otherwise provided in subdivisions (b) and (c), the court shall determine the fair market value of the property by ordering an appraisal pursuant…
- § 874.317 (a) If any cotenant requested partition by sale, the court shall, after the determination of value under Section 874.316, send notice to the parties that any…
- § 874.318 (a) If all the interests of all cotenants that requested partition by sale are not purchased by other cotenants pursuant to Section 874.317, or if after…
- § 874.319 (a) In determining whether partition in kind would result in great prejudice to the cotenants as a group, the court shall consider the following: (1) Whether…
- § 874.320 (a) If the court orders a sale of property, the sale shall be an open-market sale unless the court finds that a sale by sealed bids or an auction would be more…
- § 874.321 (a) A broker appointed to offer property for open-market sale shall file a report with the court not later than seven days after receiving an offer to purchase…
- § 874.321.5 In an action for partition of property, the court may apportion the costs of partition, including an appraisal fee, pursuant to Section 874.040, except that…
- § 874.323 This act modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act (15 U.S.C. Sec. 7001 et seq.), but does not modify,…