Partition Actions

What happens if you and your brother that simply do not get along inherit your mother and father’s cattle ranch in Fresno? What happens if the mansion you purchased with your wife, before the divorce is something neither of you want to give up? Finally, what happens if land is gifted to you and a stranger? These are only a few examples of where a partition referee can be necessary to split or even force the sale of property to serve the best interest of everyone.

A partition referee can be appointed by a superior court pursuant to California Code of Civil Procedure “CCP” § 872.710 et. seq. For many years a partition referee had the burden of proving that a forced sale was not equitable, which encouraged partition referees to figure out ways to divide property instead of forcing a sale.1 As recently as 1980 Appellate Courts strongly disfavored forced sales in partition actions.2 However, as building codes, fire codes, and planning departments grew into power and breadth dividing property became extremely difficult. In fact, city general plans became the most important item in the hierarchy of government land use.3 As a result of the increase of city planning, dividing property became extremely difficult and it was not uncommon for courts and partition referees to divide property in violation of planning ordinances. This became a problem and the legislature enacted CCP 872.040 and increased the strength of an older caselaw, which held that courts and partition referees had to consider local laws before using a state court to partition property.4

As a result of the enactment of CCP 872.040 courts shifted from seeking to partition property to forcing sales. Courts interpreted that if a more equitable result could be reached by selling property than through a partition, then that would be encouraged.6 Therefore, properties are often sold instead of partitioned in partition referee actions, but either can occur. In summary, a partition referee can help split or sell property in a variety of difficult circumstances.

1 Bartlett v. Mackey (1900) 1380 Cal. 181, 183.
2 Richmond v. Dofflemyer (1980) 105 Cal. App. 3d 745, 757
3 Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App. 3d 1176, 1183.
4 Pratt v. Adams (1964) 229 Cal. App. 2d 602, 603-604.
5 California Code of Civil Procedure 872.810
6 Richmond v. Dofflemyer (1980) 105 Cal. App. 3rd 745, 757.