This is a lovely story about a lonely, run-down Victorian in San Francisco that illustrates some of the complexities that can arise in a partition context.

Sometime around 1920, a young couple purchased a Victorian home on Bush Street near Masonic in San Francisco, one of several in a row along the block.  Their family grew to seven children, all but one of whom ultimately moved elsewhere where they went on with their lives, raising families of their own. 

One son, after his marriage, along with his wife, moved in with his parents.  The parents ultimately passed on, as did the son's wife.

"A Lonely San Francisco Victorian"
This old home in San Francisco had been occupied by the same family for three generations.  Unfortunately, as various family members died, there were no wills and no probate or estate administration proceedings.  As a consequence, interests in the home passed by the operation of law, called intestate succession.  With larger families, and multiple generations, this resulted in 29 fractional ownership interests.
Although his mother's estate was properly probated with her interest going to the surviving husband, when the husband died, there was no probate and hence, title to the home remained in the name of the deceased husband/father.  The mortgage had been paid off by the time of the father's death (remember, the mother had died first), and the son, who continued to live in the house,  paid the real property taxes on a timely basis after the father's death.  As a consequence,  there was no reason for any governmental inquiry into the property's title.  The son, who was in his 80's at the time  the partition action was commenced, continued to live in the house until it was ultimately sold.

Because the mother died intestate, that is, without a will,  each of her seven children became entitled to a proportional interest in the property by the process of intestate succession.  The term intestate succession refers to a statutory scheme that determines how property is distributed when a decedent fails to leave a probatable will.  To die "intestate" means to die without a will.  Normally, an intestate estate is subject to probate administration and the assets are distributed according to the statute.  In this instance, that did not happen, yet the intestate succession law gave each of the seven siblings a 1/7th interest in the home, although this was not reflected in any deeds or in any other official records.    In fact, most of them did not know that they had a legally recognized interest in this property!

At some point or other, each of the seven children was married and had children of their own.  A number of the couple's children died as did some of the children in the next generation.  Some left wills, but no interest in the home was mentioned or inventoried in any probate proceedings.  Others died intestate.  Thus, with time, interests in the property were now spread over two generations beyond the initial buyers of the property.  In a few instances, great grandchildren of the initial owners came into interests either by will or intestate succession because their parents, ie the grandchildren of the initial owners, passed on. Some family members had interests which were derived from the estates of several decedents as cousins can inherit under the intestate succession laws.

It is a fact of life that deaths do not necessarily occur in generational sequence.  By the time the partition action was filed at the behest of one of the original siblings, there were approximately 29 owners of fractional interests in the property.  These family members resided in a half dozen states; one had disappeared and was presumed deceased; and many only knew of but had never met their distant cousins.  Most did not even know that they owned a portion of the house.

Several of the children of the initial owners were elderly and needed the resources reflected in their partial ownership of the house for their support.  They were concerned that the house, which by this time was in run down condition, would lose all value.  Meanwhile, the son who continued to live in the home, was not willing to sell the house and divide the proceeds.  His siblings consulted an attorney who commenced a partition action on their behalves.

In this instance, the referee jointly listed the property with a San Francisco real estate agent, and it was promptly sold.  At the confirmation hearing, the sales price was overbid to a total that exceeded $650,000, reflecting the high housing values in San Francisco.  It now became necessary for the Referee to distribute those funds to the owners.

This case presented some unique and complex problems. In a partition action, the court must determine the ownership of the property and hence, it was necessary for the attorney representing the plaintiffs to construct a family tree and to sort out the interests of each of the 29 owners.  The fractional interests ranged from a high of 16.3265% to a low of 0.2268%.

It was then necessary to locate each of the owners.  This required some considerable sleuthing on the parts of the attorney and the referee.  Some of the owners' interests were subject to judgment liens and hence the lien holders had to be identified and the amount of their claims ascertained.  Under California law, a lien holder is entitled to priority payment from the proceeds of the sale of real property. One of the owners had disappeared ten years earlier and the legal presumption of death had to be given effect.  Her children had to be located as they were entitled to her interest by intestate succession and as they were minors, blocked trust accounts had to be established.  Several of the owners had very common names and it was necessary to confirm that they were who they were thought to be.  These complexities made the title company wary of issuing title insurance until all these matters were clarified.  To solve that problem, the Referee persuaded the title company to escrow the funds until the Court had finally confirmed the identities of the owners and the amounts that they were due.

In the end, it took nearly a year after the sale was completed before the proceeds could be distributed.  Some of the documents relating to this case are in the Forms section of this site.


The Victorian Cottage case is an unusual urban example of the fractionated interests that results from the intersection of four elements:

. . . . married couples holding properties as tenants in common

. . . . failure of estate planning

. . . . the laws of intestate succession

. . . . property interests passing through successive generations without probate

This phenomena is very common in Southeastern rural areas, particularly among African-American families.

The following is an interesting discussion of this problem excerpted from: "From Reconstruction to Deconstruction: Undermining Black Landownership, Political Independence, And Community Through Partition Sales of Tenancies in Common", Northwestern University Law Review 505 - 580, 505-511 (Winter 2001) (Citations omitted). 

"...[T]his Article examines how the legal rules governing land owned under tenancies in common contribute to black land loss, especially as they pertain to tenancies in common that have become highly fractionated over time as land is transmitted from one generation to another by way of intestacy. As indicated, the very rules governing tenancies in common do not fairly allocate rights and responsibilities among cotenants no matter how consolidated the fee may be. This Part also demonstrates how a large percentage of land owned by rural, African American landowners has become highly fractionated over time through transfers of land by way of intestacy”

“This Article focuses on one of the primary causes of involuntary black land loss in recent times--partition sales of black-owned land held under tenancies in common. A partition sale can be viewed as a "private" forced sale of land held under a concurrent ownership arrangement, typically a tenancy in common. The combined effect of two sets of legal rules contributes to the loss of black- owned rural land as a result of partition actions. First, like many other poor Americans, rural African American landowners have tended not to make wills; at the owner's death, state intestacy laws enable a broad class of heirs to acquire an interest in real property of the decedent. Interests in property transferred by intestacy from one generation to another become highly fragmented, splintering the fee into hundreds and even thousands of interests. A tenancy in common so splintered is commonly referred to as fractionated heir property or just heir property."

". . . the resulting tenancies in common are governed by common ownership rules that fail to distribute rights and responsibilities fairly among the tenants in common. Any tenant in common, whether a cotenant holding a minute interest or a substantial interest, may force a sale of the land, thereby ending the tenancy in common. Any cotenant may sell her interest to someone outside of the family or ownership group, bringing a stranger into the circle of cotenants, without seeking the consent of the other cotenants. Despite these broad powers, there are no corresponding obligations to contribute to the ongoing costs of maintaining the property."*


See also: for another discussion of this issue.