When a Property May be Partitioned

A partition action is a lawsuit in which a co-owner requests that the court divide the property or its sale proceeds. Three types of partition are:

·      Physical division of the property. (Code Civ. Proc. §§873.210 – 873.290.);

·      Sale of the property and division of the proceeds. (Code Civ. Proc. §§873.510 – 873.850.); and

·      Partition by appraisal under which any of the parties may acquire the interests of others at their value as assessed in a court-ordered appraisal. (Code Civ. Proc. §§ 873.910 – 873.980.)         

A partition proceeding is statutory in origin but it is one in which the trial court makes its ruling based on equitable considerations. Any partition must comply with any applicable laws, regulations, or ordinances governing the division of property. (Code Civ. Proc. §872.040). 

There is essentially only one basic requirement for a partition: That the property is co-owned. The only evidence that a plaintiff in a partition will need is evidence that they are a co-owner. The most common form of evidence of co-ownership is a deed recorded in the county recorder where the property is located identifying the grantee (transferee/buyer/recipient) as the co-owner. Regardless of whether your co-owner rented out the property, occupies it themselves, runs a business at the property, or the property suffers from some serious detriment, each co-owner has the right to a partition. The court in a partition will not weigh whether or not the partition seems “fair” for the parties. A co-owner of real property may file an action for partition, severing unity of possession in that property. This process is governed by Code Civ. Proc. §872.010, et seq. 

Accounting and Compensatory Adjustments

The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity. (Code Civ. Proc., §872.140.) The Court in Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1036 states: “Every partition action includes a final accounting according to the principles of equity for both charges and credits upon each co-tenant’s interest. Credits include expenditures in excess of the co-tenant’s fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages, and other liens, insurance for the common benefit, and protection and preservation of title.”

Is the Cotenant Not In Possession Entitled to the Fair Rental Amount

Each tenant in common has a right to occupy the property and one cannot collect rent from another who has exercised that right. (Nevarov v. Nevarov (1953) 117 Cal.App.2d 581, 585.)

Generally, a claim for the implied rental value of exclusive possession by one co-owner depends upon a showing of actual ouster. “In order for a cotenant who is not in possession to recover the rents and profits, or the value of possession, from the cotenant in possession, they must establish that there has been an ouster….” (Estate of Hughes (1992) 5 Cal. App. 4th 1607, 1612.)

An ouster, in the law of tenancy in common, is the wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession. The ouster must be proved by acts of an adverse character, such as claiming the whole for himself, denying the title of his companion, or refusing to permit him to enter. Actual or constructive possession of the ousted tenant in common at the time of the ouster is not necessary. (Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548.) Tenants in common have the right to occupy the subject property. (Brunscher v. Reagh (1958) 164 Cal.App.2d 174, 176.) When one tenant in common occupies the property, the out-of-possession cotenant is generally not entitled to recover the rental value of the property from the cotenant in possession. (Id. at pages 176–177.)

Attorney’s Fees and Costs of Partition

The court shall not apportion the costs of partition to any party that opposes the partition unless doing so is equitable and consistent with the purposes of this chapter. (Code Civ. Proc. §874.321.5) The costs of partition include reasonable attorney’s fees incurred or paid by a party for the common benefit. (Code Civ. Proc. §874.010.)



Code Civ. Proc. §874.040 states that the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.

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