ARTICLE LINKS
The law of partitioning real property has developed over hundreds of years and reflects not only the practical limitations of what courts can do, by also the psychology of persons involved in partition disputes. Click on the titles to any of the articles below to learn more about this fascinating area of the law."A Primer on Partition Actions" This is a comprehensive article describing partition actions under California law. It should be used as an overall guide. Citations to California statutes have been deliberately omitted as these statutes change and a practitioner should review the actual provisions when considering or pursuing a partition action.
"The Role of the Referee in Partition" This is a general discussion of the role of the referee in partition, the responsibilities of the referee, how the referee is compensated, and how counsel can utilize the services of an experienced referee to accelerate the resolution of the controversy and to reduce the overall expense of the proceeding.
"Novel Partition Procedure" This is an article in pdf form from the Columbia Law Review of May, 1903 written by Robert Ludlow Fowler, one of the most renowned real estate legal scholars in New York in the late 19th and early 20th centuries. Mr. Fowler provides a fascinating history of the partition remedy with references dating back to ancient Rome and the reign of Henry VIII. Although most lawyers know that our legal system is largely derived from English common law, many non-lawyers do not appreciate how important English history is to the understanding of American legal principles. One of the most interesting points made in the article is that at old English law, there was a distinction between tenancies in common that arose out of inherited interests and those that were created by the deed of a living transferor. The former could be partitioned while the latter could not. That distinction is no longer recognized and all co-tenancies are susceptible to partition as is evident from the case histories. The language of the article is a bit arcane, but it makes for very interesting reading. You can access the article by clicking here.
"Which Remedy, Partition by Division or Partition by Sale? This somewhat technical article was stilmulated by a case in Butte County, California where the moderator represented one of the parties. In an exercise of poor estate planning, the involved property had been willed to two sisters who did not get along, and to a brother of the decedent. The brother received 2/3rds of the property and each of the sisters, 1/6th. The property was essentially undeveloped and was located within the city limits of Gridley.
The plaintiff, an experienced real estate developer, purchased an adjacent parcel and the brother's 2/3rds interest in the involved property. His plan was to develope a mini-store facility on the combined parcels. After being unable to reach agreement with the sisters on the purchase of their interests, the plaintiff filed a partition action seeking to physically divide the involved property such that he would acquire the prime acreage which happened to be contiguous with the parcel he already owned. The defendants proceeded without counsel and the plaintiff's attorney was able to pursuade the judge to appoint a referee to physically divide the parcel in the manner that the plaintiff desired. The defendants were at a great disadvantage as they had no understanding of partition litigation. The moderator was retained by one of the sisters who discovered this website, at the point that the Judge had announced his decision but before the court had entered a formal interlocutory judgment. At this last moment, the moderator entered the case on behalf of one of the defendant sisters and filed a brief and a proposed order which was heartedly contested by the plaintiff's counsel. The court adopted the order submitted by the moderator whose primary argument was that the court could not, in effect, subdivide the property by judgment as any such division was subject to the primary jurisdication of the local planning authorities. (The brief can be found here.)
Having been exposed to that issue for the first time, and having to prepare the brief on very short notice, the moderator determined to fully explore the applicable legal issues in the form of this article which is accessible here.
