How to File and Prosecute a Real Estate Partition Lawsuit in California under the PRPA – Part One

A partition action is a legal proceeding that enables a co-owner of real property to force the sale of the property or the division of the property among co-owners. As discussed in an earlier blog certain partition actions filed after January 1, 2023, are subject to a new California law called the Partition of Real Property Act (the “PRPA”).[2] The PRPA applies only to real property held in tenancy in common where there is no binding written agreement governing partition of the property. Most importantly, the PRPA makes it far easier for a co-owner to avoid a forced sale of his or her interest by buying out the co-owner filing the partition action.

 A tenant in common commences a real estate partition action under the PRPA in the same manner as any other partition action in California: that is, by filing a complaint in the superior court of the county in which the property is located.[3] The plaintiff should include as defendants in the partition lawsuit all persons with a recorded interest (or claim of an interest) in the property, all persons known by the plaintiff to have an interest in the property, and all persons whose interest in the property is reasonably apparent from an inspection of the property.[4] Such group includes those persons holding mortgages or other liens encumbering the property,[5] but does not include tenants under leases of the property.[6] Any person (in this group) who plaintiff fails to include in the partition lawsuit will not be bound by the judgment issued in the partition lawsuit.[7] As a result, before filing a partition action, a preliminary title report or litigation guaranty should be obtained in order to determine the names of those persons holding recorded interests against the property. If any such title report is obtained, the complaint must disclose the existence of such document and designate a place where it will be available for inspection and copying.[8]

The complaint for partition of real property must contain the following information:

Description of the Property

The partition complaint must include both the legal description and street address of the real property.[9] The legal description is shown on the deed through which the plaintiff acquired title to the property, subject to any later transfers made by the plaintiff.

Description of the Plaintiff’s Interest in the Property

The partition complaint must also include a description of plaintiff’s interest in the property.[10] In a partition action under the PRPA, the plaintiff must own a tenancy in common interest in the property. The percentage interest should be stated in the complaint, for example, “Plaintiff owns an undivided 50% interest as tenant in common in the fee title to the Property”.

Description of other Material Recorded Interests in the Property

The partition complaint must also include all other material interests of record in the property known to the plaintiff.[11] Since all such persons must be named as defendants in the lawsuit, this requirement is typically satisfied by simply describing the defendants’ interests in the property.

Description of the Estate to be Partitioned and Prayer for Relief

The partition complaint must include a statement of “the estate as to which partition is sought and a prayer for partition of the interests therein.”[12] In most cases, the partition lawsuit will apply to the full ownership of the property, called the “fee title”, “fee” or “fee estate”. As to the prayer for relief, in a partition action the plaintiff will seek a judgment partitioning the property either by sale (with the proceeds to be divided amongst the owners) or by actual division of the property itself into separate parcels to be conveyed to each owner. In certain cases, the plaintiff may request an accounting to determine whether any of the defendants owe the plaintiff money for its share of past property income or because the defendants have not paid their share of the expenses. In such case, the plaintiff will also likely seek a monetary award against the defendants for amounts due.

If a Sale is Sought, the Facts Justifying Such Sale

Finally, if the plaintiff is seeking a sale of the property, the partition complaint must include a statement of the facts justifying the need for a sale.[13]

Immediately after filing the partition complaint in the superior court, the plaintiff is required to record a notice of the pendency of the action in the office of the county recorder of the county in which the property is located.[14]

 For additional information, call our partition attorneys at (310) 656-8000.

[1] See “Introduction to Real Estate Partition Actions in California”, July 21, 2023

[2] Cal. Code of Civil Proc. §874.311 – 874.323.

[3] Cal. Code of Civil Proc. §872.110.

[4] Cal. Code of Civil Proc. §872.510.

[5] See Legislative Committee to Comment to Cal. Code of Civil Proc. §872.510.

[6] Cal. Code of Civil Proc. §872.540.

[7] Cal. Code of Civil Proc. §874.225(b).

[8] Cal. Code of Civil Proc. §872.220(a)

[9] Cal. Code of Civil Proc. §872.230(a).

[10] Cal. Code of Civil Proc. §872.230(b).

[11] Cal. Code of Civil Proc. §872.230(c).

[12] Cal. Code of Civil Proc. §872.230(d).

[13] Cal. Code of Civil Proc. §872.230(e).

[14] Cal. Code of Civil Proc. §872.250.