Who Pays For Partition Action?

Attorneys Real Estate Group

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“In the beginning, partition was a fair method for dividing property. It differs from other types of real estate lawsuits, such as quiet title and ejectment, because partition lawsuits need a common title or interest to the underlying property instead of two competing ownership claims.”

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Who Pays For Partition Action?

Real estate partitions account for most partition cases filed under California law. However, the partitioning of personal property and real estate is possible. In this post, we will learn about Who Pays for Partition Action.


What is A Partition Action?

An act of partition occurs when tenants in common split their property. It is uncommon for courts to order a literal division or partition of property. Instead, they often contain a sale of the property and a division of its proceeds.

Only some parties agree to a private sale; any sale the court orders will be public unless the other co-owners file an answer disputing the right to ask for partition. As a result of a public sale, the sheriff of the county aims to sell the property, give the purchaser a deed, and either distribute the proceeds to the parties as specified in the judgment or to pay the proceeds to the Superior Court Clerk, where they will await a court order.


Circumstances Which Cause A Partition Action To Be Necessary.

One owner often owns a property and then passes away. Property ownership is then transferred via a will or by operation of law to several owners with different goals and aspirations for the property.

Property partition actions often result when the parties cannot agree on how to use the property. Other situations may involve a couple buying property and owning it together but not marrying. In a divorce, the couple may disagree on the usefulness of the property, resulting in another partition proceeding.


Partition-Prone Ownership Arrangements

If a parent or relative passes away, many siblings may inherit a piece of real estate. This is the most common reason for a partition action. A loved one may die without a valid will (intestate) or be unable to decide which child should receive the property, such as:

  • Houses,
  • vacation homes,
  • Apartments,
  • Or other valuables property.

It is possible, however, for a conflict to occur in any situation where two or more people own the exact property that requires partition. A partition action can be Useful whenever Real estate own by many people who cannot agree on what to do with it.

This includes joint tenancy, tenancy in standard, multiple executors, etc. selling powers, and coparceners. You and your relatives will save yourself years of confusion and bickering by allowing a judge to decide the property’s future.


Who Handles Paying For A Partition Action In California?

One of our most common questions as experienced partition attorneys is who will pay for legal services relating to the partition action. Our clients often call, hoping the opposing party will cover some or all of these costs.

They can include attorney’s fees, filing and court fees, fixing up the property before selling, etc. A few essential factors exist when considering who will pay for a partition action.

According to the “American Rule,” each party pays their attorney’s fees in the United States. However, a California partition law exception states in California Code of Civil Procedure 874.040 that the court must apportion partition costs according to the interests of the parties or in any other manner as is equitable. California Code of Civil Procedure 874.010(a) permits the court to award “reasonable attorney’s fees.”

Attorney’s fees and the overall cost of a partition action are kept to a reasonable level by an experienced partition attorney.


Is It Unfair To Pay For A Partition Action Out Of Your Pocket?

It may seem unfair to pay for a partition action out of your pocket when your co-owner is wrong, but it might be a relatively small price to expedite the process. Fighting over a few thousand dollars (typical partition actions typically cost around $8,000) may not be worth it if you invest time, energy, and time.


Pay For A Partition Action Out Of Your Pocket.


Co-owners are generally entitled to several hundred thousand dollars in equity in a home valued at over $750,000 in California. Hence, a few thousand dollars in attorney’s fees are nothing compared to the hundreds of thousands each co-owner may receive in equity.

Think about inheriting an $800,000 home with your brother. You have paid your parents off the house, which is mostly in good condition, apart from a few cosmetic issues. Despite living in the house, your brother is unwilling to maintain it and unreasonable about selling it.

Getting the home sold won’t cost you $8,000 in attorney’s fees, but you will get $400,000 in equity as a result.

There is more value to ending a toxic co-ownership relationship, receiving your equity, and moving forward in your life than pursuing lawyer’s fee reimbursements. California Law’s partition attorneys can explain the benefits and drawbacks of dating partition-related costs.


Consideration of a Partition Suit: Questions to Ask

Before filing a partition suit, you should ask yourself a few questions since a person cannot forcibly keep ownership of real property they don’t want.

Can I bring a partition suit?

It is only possible to bring a partition suit by a co-owner of real property, for instance, if a parent left your sibling and you their home through their will, but the executor has been taking a long time to transfer ownership because they live there.

Until the title to the property is in transit, you and your sibling do not have standing to bring a partition suit. However, if you had a claim of fiduciary misconduct against the executor, you could sue the executor.

What other options are there for resolving the dispute?

A co-owner and a co-owner who cannot agree on what to do to reach an agreement, property owners often negotiate outside of court. Even though there may already be a partition suit, mediation is still an option.

Can I afford and time a partition suit?

To determine if filing a partition suit is an investment you can afford, you must decide early on. Attorney’s fees and costs may be awarded to you by the judge, but it is also possible that the amount due will come from your sale proceeds.

In a partition lawsuit, what do I want to achieve?

Your lawyer and co-owners should be clear about your intentions for the property in the complaint.

Am I willing to negotiate?

Are you willing to pay interest over time to your sibling if you inherited a house with siblings? Would you let your sibling use other assets from the estate, or you trust fund distributions to buy you out?

Does the property in question qualify as heirs’ property?

In January 2022, California partition laws revisions were made to address heirs’ property. These reforms will affect how heirs the court partitions heirs’ property.

Have I consulted with a lawyer?

Bring a lawyer on board to assist you with the partition action process to simplify the process for yourself. It is challenging to complete partition action forms on their own.


In A Partition Proceeding, Who Pays The Attorney’s Fees?

If a co-owner chooses not to hire a lawyer, the law generally says that each party handles paying their attorney. Under certain circumstances, the judge may order an unrepresented party to pay a portion of the fees in that case.

Only expect the judge to automatically pay your attorney’s fees if you ask the unrepresented party to cover some of them.


Benefits of a Partition Action

It is especially beneficial to take a partition action when co-owners cannot agree on how to use or sell a property. Those points can even be impressed if co-owners cannot even agree. By filing a petition for partition, it is possible to force the co-owners to mediate to resolve their differences. In most cases, mediation is less expensive than going to court.

An owner who undertook significant renovations may find a partition action attractive. A partition action allows recovering some of the unreimbursed renovation costs from the other owner(s).


Challenges of a Partition Action

If parties cannot agree on the terms of a partition action, even in mediation, a judge can decide the case, which can be financially burdensome. Furthermore, the partition action process can take a long time to complete.

All parties would not need to go through this process if they could agree. But, if a petition to partition contains, it could take months to resolve the case. A partition action may result in the loss of the property itself. The owners will divide the proceeds if the property is currently for sale.


Bottom Line

This legal process of partitioning can be complicated and has many advantages and challenges. You deserve the right to enjoy the property or receive compensation for your share of its ownership, regardless of the outcome.

If you are considering a partition action, an experienced real estate attorney at Attorney Real Estate Group can assist you with understanding your legal rights and advise you on what to do next.

Hedy Ghavidel

HEDY GHAVIDEL Managing Attorney  Roseville Office  1-866-471-6981  info@attorneysre.com Bio...

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