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How to File a Partition Action

Martinez Law Office, Inc Dec. 7, 2023

As of November 2023, there is a glimmer of hope for home buyers as mortgage interest rates have shown signs of relief—they have decreased from 7.5% to 7.44% in just one week. This steady three-week decline suggests that we may have reached a peak and are now heading towards lower mortgage rates. This shift is expected to have ripple effects on the market, creating opportunities for other movements and adjustments.  

If you're keeping your finger on the pulse of the real estate market, you may be considering making some changes in your own portfolio. Perhaps it's time to file a partition action to divide or sell some jointly-owned property that you inherited or went in on with some family members—so you can free up some cash or move on to other investments. But what exactly is a partition action, and how do you file one?  

As a real estate attorney with over four decades of experience, I've helped countless individuals and businesses navigate the ins and outs of co-owned property, including partition actions. This legal process is used when co-owners can't agree on how to divide a property or when one co-owner wants to sell their share. It's not a simple process, but with the right guidance, it can be conquered with efficiency and precision.  

My goal with this article is for it to serve as a step-by-step guide on how to file a partition action. If you have any questions or require legal assistance, please contact me at Martinez Law Office, Inc. I work with clients throughout Southern California.  

Understanding Partition Actions 

A partition action isn't something to take lightly. It involves legal proceedings, court hearings, and potentially the sale of your property. So the first step in filing a partition action is understanding exactly what the action entails. 

In essence, a partition action is a legal remedy available to co-owners of a property who aren't able to reach an agreement on how to divide or distribute the property. The court steps in to make a fair decision on how the property should be divided or whether it should be sold, with the proceeds split among the co-owners.  

Types of Partition Actions in California 

Partition in Kind 

First, there's the partition in kind, or physical division. This type of partition action is usually suitable for large pieces of land that can be easily divided into distinct portions. Here, the court orders the property to be physically divided among the co-owners according to their respective interests. 

However, keep in mind that a partition in kind isn't always feasible. The nature of the property, its size, or its location could make a physical division impractical or even detrimental to the owners' interests.  

Partition by Sale 

When a partition in kind isn't feasible or would significantly harm the owners' interests, the court may order a partition by sale. In this case, the property is sold, and the proceeds are divided among the co-owners based on their ownership interests. 

Partition by Appraisal 

In some cases, one, or more of the co-owners may wish to keep the property. A partition by appraisal allows these co-owners to buy out the others based on an appraised value of the property. This process requires a fair and accurate appraisal, which can be a complex task. 

Evaluating Your Situation 

Before you proceed with a partition action, you need to evaluate your situation thoroughly. You must determine whether a partition action is necessary and if you have a valid legal basis for filing one. This is where a real estate lawyer can serve as an invaluable resource.  

Remember, filing a partition action is a significant decision to make. It can be time-consuming and costly, but it may be essential in order to protect your interests and advance your objectives. Therefore, don't hesitate to consult with an attorney to make sure that it's the best course of action for you to take.  

Hiring an Attorney and Preparing the Complaint 

Partnering with an attorney should be an early item to check off your list. If you haven't done so yet and have already decided you want to proceed with a partition action, now would be the time.  

Engaging the services of a real estate lawyer who's well-versed in property law and partition actions is critical. They will guide you through the process, represent your interests, and ensure that your rights are protected. 

After hiring an attorney, the next step will be preparing the formal complaint. This document clearly states the reasons for the partition action, identifies the co-owners involved, describes the property in question, and requests the court's intervention to divide the property. You can think of it as filing a divorce, but for co-owned property.  

As a seasoned attorney based in Southern California, I can help draft a comprehensive and compelling complaint to strengthen your case. 

Filing the Complaint and Notifying Co-Owners 

After your complaint is ready, you must file it with the appropriate court and pay the required filing fees. As your attorney, I will handle the necessary paperwork and make sure that everything is properly filed. 

Then, all co-owners involved in the partition action must be notified of the complaint. This can be done through personal delivery or certified mail, depending on the court's requirements. It's important to adhere to these procedures to avoid any potential legal pitfalls. 

Attending Court Hearings and Following Through with the Partition 

Court hearings are an integral part of the partition action process. As your representative, I will present your case to the court, advocating for a fair division of the property. 

Once the court determines that a partition is necessary, it will issue a partition order outlining how the property will be divided. This may involve a physical division of the property or a sale and distribution of the proceeds. It is then your responsibility, with my assistance, to comply with the court's partition order and ensure a smooth transition. This may involve coordinating with co-owners, real estate agents, and other professionals to execute the division or sale of the property. 

I'm Here to Help You Achieve Your Goals 

Navigating a partition action can be complex, but with professional guidance, it's absolutely manageable. If you're facing a situation that may require a partition action or any other business-related legal challenge, don't hesitate to reach out to me at Martinez Law Office, Inc. I'm here to help protect your business interests and position you for success. 

I work with businesses and their owners across Santa Ana, California, and the communities throughout Orange County, Los Angeles County, and San Diego County.