Partition Action Complaint - California

VERIFIED COMPLAINT FOR PARTITION OF REAL PROPERTY — CALIFORNIA

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Parties
4. Jurisdiction and Venue
5. The Subject Property
6. Cotenancy and Title
7. First Cause of Action — Partition (CCP § 872.210)
8. Second Cause of Action — Accounting and Compensatory Adjustments
9. Partition of Real Property Act Allegations (CCP §§ 874.311-874.323)
10. Manner of Partition
11. Prayer for Relief
12. Verification
13. California Practice Notes
14. Certificate of Service
15. Sources and References

1. CAPTION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [________________________________]

CASE NO. [________________________________]

VERIFIED COMPLAINT FOR PARTITION OF REAL PROPERTY

(1) Partition — CCP § 872.210; (2) Accounting / Compensatory Adjustments — CCP § 872.140)

[UNLIMITED CIVIL CASE — Amount in Controversy > $35,000]

2. INTRODUCTION

Plaintiff [PLAINTIFF NAME] ("Plaintiff") brings this verified action pursuant to California Code of Civil Procedure section 872.010 et seq. for the partition of the real property commonly known as [PROPERTY ADDRESS], [CITY], [COUNTY] County, California (the "Property"), which is owned concurrently by Plaintiff and Defendants as cotenants. Plaintiff alleges as follows on personal knowledge as to matters relating to Plaintiff and on information and belief as to all other matters.

3. PARTIES

3.1. Plaintiff [PLAINTIFF NAME] is, and at all relevant times was, an individual residing in [COUNTY / STATE], and is the record owner of an undivided [____] interest (e.g., 1/2) in the Property as a tenant in common.

3.2. Defendant [DEFENDANT 1] is, on information and belief, an individual residing in [COUNTY / STATE], who is the record owner of an undivided [____] interest in the Property.

3.3. Defendant [DEFENDANT 2] is, on information and belief, [an individual / a corporation / a trust / a lienholder] who holds or claims an interest in the Property as [cotenant / mortgagee / judgment lienholder / ________].

3.4. Pursuant to CCP §§ 872.510 and 872.550, Plaintiff joins as defendants all persons having or claiming an interest in the Property, including "all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint."

3.5. The true names and capacities of Defendants Does 1 through 20, inclusive, are unknown to Plaintiff, who therefore sues these Defendants by fictitious names and will amend when ascertained.

3.6. The interests of all cotenants and lienholders, as presently known, are set forth in the following table (CCP § 872.230(b)):

4. JURISDICTION AND VENUE

4.1. This Court has subject-matter jurisdiction pursuant to California Constitution Article VI, § 10 and CCP § 872.110, which vests the superior court with jurisdiction over partition actions.

4.2. Venue is proper in this Court pursuant to CCP § 872.110 and § 392 because the Property that is the subject of this action is located within [COUNTY] County, California.

4.3. The amount in controversy exceeds $35,000, exclusive of interest and costs, qualifying this as an unlimited civil case.

5. THE SUBJECT PROPERTY

5.1. The Property is real property located at [STREET ADDRESS], [CITY], [COUNTY] County, California [ZIP], identified by Assessor's Parcel Number [APN: ____________________].

5.2. The Property is legally described as:

[INSERT FULL LEGAL DESCRIPTION FROM DEED / TITLE REPORT — METES AND BOUNDS OR LOT-AND-BLOCK]

5.3. The Property consists of [describe: single-family residence / vacant land / ____ acres of farmland / multi-unit building] and is [occupied by ________ / vacant].

5.4. A title report meeting the requirements of CCP § 872.220 ☐ is attached as Exhibit "[__]" ☐ will be filed with the Court.

6. COTENANCY AND TITLE

6.1. Plaintiff and Defendants [name cotenants] hold title to the Property as ☐ tenants in common ☐ joint tenants, in the respective undivided fractional shares set forth in Section 3.6 above.

6.2. Title was acquired by ☐ a single deed dated [__/__/____], recorded as Instrument No. [____________________]; ☐ inheritance / intestate succession from [DECEDENT NAME], who died on [__/__/____]; ☐ multiple conveyances as set forth in the attached chain of title; ☐ other: [________________].

6.3. Plaintiff has not waived, by written agreement or otherwise, the right to partition the Property, and no enforceable agreement among the cotenants prohibits or restricts partition. (See Cal. Civ. Code § 718; CCP § 872.710.)

6.4. As a cotenant holding an estate of inheritance, Plaintiff is entitled to partition of the Property as a matter of right under CCP § 872.210.

7. FIRST CAUSE OF ACTION — PARTITION (CCP § 872.210)

(Against All Defendants)

7.1. Plaintiff incorporates paragraphs 1 through 6.4, inclusive, as though fully set forth herein.

7.2. Plaintiff is an owner of an estate of inheritance in the Property, which is owned by several persons concurrently, and is therefore a person authorized to commence and maintain a partition action under CCP § 872.210(a)(2).

7.3. Plaintiff desires and is entitled to partition of the Property according to the respective interests of the parties as the Court shall determine.

7.4. No adequate remedy at law exists, and continued cotenancy is impractical and prejudicial to Plaintiff's interests.

7.5. Plaintiff seeks an interlocutory judgment under CCP § 872.720 determining the interests of the parties, ordering partition, and determining the manner of partition.

8. SECOND CAUSE OF ACTION — ACCOUNTING AND COMPENSATORY ADJUSTMENTS

(Against Cotenant Defendants — CCP §§ 872.140, 872.430)

8.1. Plaintiff incorporates paragraphs 1 through 7.5, inclusive, as though fully set forth herein.

8.2. Pursuant to CCP § 872.140, the Court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.

8.3. Plaintiff has paid, in excess of Plaintiff's proportionate share, the following expenses for the benefit and preservation of the Property, for which Plaintiff seeks contribution and credit:

• ☐ Real-property taxes and assessments: $[____________];
• ☐ Mortgage / deed-of-trust principal and interest payments: $[____________];
• ☐ Hazard and liability insurance premiums: $[____________];
• ☐ Necessary repairs and maintenance: $[____________];
• ☐ Capital improvements that enhanced the value of the Property: $[____________];
• ☐ Other: [________________________________]: $[____________].

8.4. Defendant(s) [NAME] have been in exclusive possession of the Property and/or have collected rents and profits in the amount of $[____________], for which an accounting and offset is sought, including, where applicable, the reasonable rental value attributable to any ouster of Plaintiff.

8.5. Where the value of one cotenant's interest is enhanced by improvements or diminished by any matter, the Court is requested to make a compensatory adjustment (owelty) so that the partition is equitable. (CCP §§ 872.140, 873.250.)

9. PARTITION OF REAL PROPERTY ACT ALLEGATIONS (CCP §§ 874.311-874.323)

9.1. Plaintiff incorporates the foregoing paragraphs as though fully set forth herein.

9.2. The Property ☐ is ☐ is not held in tenancy in common subject to the Partition of Real Property Act, CCP §§ 874.311-874.323. There is no agreement in a record binding all cotenants that governs the partition of the Property.

9.3. If the Partition of Real Property Act applies, Plaintiff acknowledges and requests that the Court:

• (a) Determine the fair market value of the Property by ordering an appraisal by a disinterested, licensed appraiser, unless the cotenants agree to value or the Court finds appraisal cost-prohibitive (CCP § 874.316);
• (b) Afford the non-requesting cotenants the statutory right to buy out the interest(s) of the cotenant(s) requesting partition by sale, at the appraised value, within the statutory periods (CCP § 874.317);
• (c) Order partition in kind unless the Court finds, after considering the statutory factors, that partition in kind would result in great prejudice to the cotenants as a group (CCP §§ 874.318, 874.319); and
• (d) If a sale is ordered, conduct it as an open-market sale at a price not less than the determined value, by a court-approved broker, unless the Court finds another method of sale is more economically advantageous (CCP §§ 874.320-874.321).

9.4. The statutory factors relevant to partition in kind (CCP § 874.319) include: ☐ whether the Property could be physically divided among the cotenants; ☐ whether partition in kind would apportion the Property in a manner that any cotenant's interest would be materially less than the share that cotenant would receive from a sale; ☐ evidence of collective duration of ownership or possession by a cotenant and the cotenant's ancestors; ☐ any cotenant's sentimental attachment, including ancestral or other unique or special value; ☐ the lawful use being made of the Property by a cotenant and the harm to that cotenant if partition in kind is not ordered; ☐ the degree to which the cotenants have contributed their pro rata share of property taxes, insurance, and other expenses, or have contributed to the physical improvement, maintenance, or upkeep of the Property; and ☐ other relevant factors.

10. MANNER OF PARTITION

10.1. Plaintiff alleges that the Property ☐ CAN be partitioned in kind without material prejudice to the parties and requests physical division according to their respective interests; OR ☐ CANNOT be partitioned in kind without great prejudice to the parties because [the Property is a single residence on a single lot / division would materially impair value / ________], and a partition by sale and division of the net proceeds would be more equitable (CCP §§ 872.820, 873.290).

10.2. Plaintiff requests that the Court appoint a referee pursuant to CCP § 873.010 to ☐ divide the Property in kind ☐ conduct the sale of the Property and to perform the other duties set forth in CCP § 873.010 et seq.

10.3. Upon any sale, the net proceeds shall be distributed in the order prescribed by CCP § 873.820: (a) expenses of sale; (b) costs of partition; (c) liens in order of priority (except those to remain on the property); and (d) the residue among the parties in proportion to their shares as determined by the Court.

11. PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as follows:

A. ☐ For an interlocutory judgment determining the interests of the parties in the Property and ordering its partition pursuant to CCP §§ 872.720 and 872.820;

B. ☐ For an order appointing a referee to divide the Property in kind or, if partition in kind cannot be made without great prejudice, to sell the Property and divide the net proceeds among the parties according to their interests;

C. ☐ For a determination of fair market value, cotenant buyout, and open-market sale procedures as required by the Partition of Real Property Act (CCP §§ 874.316-874.321), if applicable;

D. ☐ For an accounting and compensatory adjustments among the parties for taxes, mortgage payments, insurance, repairs, and improvements, offset by rents and profits received and any ouster, pursuant to CCP § 872.140;

E. ☐ For costs of partition, including reasonable attorney's fees and the fees and expenses of the referee, incurred for the common benefit, to be apportioned among the parties in proportion to their interests or as the Court deems equitable (CCP §§ 874.010, 874.040);

F. ☐ For costs of suit incurred herein; and

G. ☐ For such other and further relief as the Court deems just and proper.

DATED: [__/__/____]

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], State Bar No. [____________]

Attorney for Plaintiff [PLAINTIFF NAME]

12. VERIFICATION

I, [PLAINTIFF NAME], declare:

I am the Plaintiff in the above-entitled action. I have read the foregoing Verified Complaint for Partition of Real Property and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein alleged on information and belief, and as to those matters, I believe them to be true.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed at [CITY], California, on [__/__/____].

[________________________________]
[PLAINTIFF NAME]

13. CALIFORNIA PRACTICE NOTES

Right to partition. A cotenant's right to partition is "absolute" and may not be denied because a sale would be inconvenient; the only contractual bar is a valid waiver agreement. (CCP §§ 872.210, 872.710; LEG Investments v. Boxler (2010) 183 Cal.App.4th 484.)

Lis pendens. A notice of pendency of action should be recorded under CCP § 872.250 immediately after filing to provide constructive notice of the partition.

Title report. CCP § 872.220 requires the plaintiff to procure a title report; CCP § 872.230 requires the complaint to state the interests of all parties so far as known.

Partition of Real Property Act (AB 2245). Effective January 1, 2022, the Act (CCP §§ 874.311-874.323) applies broadly to tenancy-in-common property, not just inherited heirs property. It imposes an appraisal, a cotenant buyout right, and a preference for partition in kind / open-market sale. Confirm whether the Property qualifies and plead accordingly.

Accounting. The accounting and compensatory-adjustment claim is governed by CCP § 872.140 and is generally resolved by the court (or referee) before final distribution; offsets exist for rents received and for ouster.

Attorney's fees. Fees and costs incurred "for the common benefit" are apportioned among the owners in proportion to their interests (CCP §§ 874.010, 874.040); fees generated by purely adversarial litigation are generally not for the common benefit (Finney v. Gomez (2003) 111 Cal.App.4th 527).

14. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing VERIFIED COMPLAINT FOR PARTITION OF REAL PROPERTY was served upon the following parties in the manner indicated:

[________________________________]
[NAME / TITLE]

15. SOURCES AND REFERENCES

• Cal. Code Civ. Proc. §§ 872.010-874.323 (Partition of Real and Personal Property)
• Cal. Code Civ. Proc. § 872.210 (Persons authorized; right to partition)
• Cal. Code Civ. Proc. § 872.230 (Required contents of complaint)
• Cal. Code Civ. Proc. § 872.250 (Lis pendens)
• Cal. Code Civ. Proc. § 873.820 (Distribution of proceeds of sale)
• Cal. Code Civ. Proc. §§ 874.010-874.140 (Costs and attorney's fees for the common benefit)
• Cal. Code Civ. Proc. §§ 874.311-874.323 (Partition of Real Property Act, AB 2245, Stats. 2022 Ch. 82)
• LEG Investments v. Boxler (2010) 183 Cal.App.4th 484 (right to partition)
• Finney v. Gomez (2003) 111 Cal.App.4th 527 (common-benefit attorney's fees)
• Judicial Council Forms (caption, POS-010 proof of service) as applicable

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