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. Additional Relief — 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. Filing and 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

Partition — CCP § 872.210; Accounting / Compensatory Adjustments — CCP § 872.140

CIVIL CASE

2. INTRODUCTION

Plaintiff [PLAINTIFF NAME] ("Plaintiff") brings this verified action pursuant to California Code of Civil Procedure sections 872.110 and 872.210 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 / joint tenant].

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 trustee / 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 persons having or claiming interests of record, actually known to Plaintiff, or reasonably apparent from inspection of the Property, in the estate as to which partition is sought. If partition is sought as to all interests, Plaintiff also joins "all persons unknown claiming any interest in the property."

3.5. The true names of Defendants Does 1 through 20, inclusive, are unknown to Plaintiff, who therefore sues these Defendants by fictitious names and will amend the complaint when their true names are discovered. (CCP § 474.)

3.6. Plaintiff's interest and all other interests of record or actually known to Plaintiff that Plaintiff reasonably believes will be materially affected are set forth in the following table (CCP § 872.230(b)-(c)):

4. JURISDICTION AND VENUE

4.1. This Court has jurisdiction over this partition action pursuant to CCP § 872.110(a).

4.2. Venue is proper in this Court pursuant to CCP § 872.110(b)(1) because the Property that is the subject of this action is located within [COUNTY] County, California.

4.3. Plaintiff seeks partition of real property in this civil action.

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 is necessary and Plaintiff has obtained one; it is available for inspection, use, and copying by the parties at [PLACE / ADDRESS]. ☐ Plaintiff requests that the Court authorize a party to procure a title report if necessary. (CCP § 872.220.)

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 validly waived the right to partition the Property. (CCP § 872.710(b).)

6.4. As a cotenant holding an estate of inheritance, Plaintiff is authorized to seek partition under CCP § 872.210(a)(2), and seeks partition of concurrent interests as of right under CCP § 872.710(b), absent a valid waiver.

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

(Against All Defendants)

7.1. Plaintiff incorporates the foregoing allegations, including paragraphs 3.1 through 6.4, 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. Plaintiff seeks partition because continued cotenancy is impractical or prejudicial to Plaintiff's interests for the following reasons: [STATE FACTS, IF APPLICABLE].

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. ADDITIONAL RELIEF — ACCOUNTING AND COMPENSATORY ADJUSTMENTS

(Against Cotenant Defendants — CCP § 872.140)

8.1. Plaintiff incorporates the foregoing allegations, including paragraphs 3.1 through 7.5, 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 collected rents and profits in the amount of $[____________], for which an accounting and offset is sought. Plaintiff also alleges ☐ an ouster from possession by [NAME] on [DATE], for which Plaintiff seeks any equitable adjustment the evidence supports.

8.5. Plaintiff requests equitable compensatory adjustments supported by the evidence. If an in-kind division cannot be made equally according to the parties' interests without prejudice, Plaintiff requests any compensation needed to correct the inequality. (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. If Plaintiff alleges that the Act applies, there is no agreement in a record binding all cotenants that governs 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, California-licensed appraiser, unless all cotenants agree to value or another valuation method, or the Court finds that the appraisal's evidentiary value is outweighed by its cost and determines value after an evidentiary hearing (CCP § 874.316);
• (b) Afford cotenants who did not request partition by sale the statutory right to buy out the interests of cotenants who did request sale, based on the Court's determination of 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, use an open-market sale unless the Court finds that sealed bids or an auction would be more economically advantageous and in the cotenants' best interest as a group. The Court shall appoint a licensed broker for an open-market sale; the broker initially offers the Property at no less than the determined value, subject to the Court's options if that price is not obtained within a reasonable time (CCP §§ 874.320-874.321).

9.4. The statutory factors relevant to partition in kind (CCP § 874.319) include: ☐ whether the Property practicably can be divided among the cotenants; ☐ whether the aggregate fair market value of the divided parcels would be materially less than the value of the Property sold as a whole, taking into account the likely conditions of a court-ordered sale; ☐ evidence of collective duration of ownership or possession by a cotenant and predecessors in title or possession who are or were relatives of that cotenant or each other; ☐ 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 that use cannot continue; ☐ the degree to which the cotenants have contributed their pro rata share of property taxes, insurance, and other ownership expenses, or have contributed to the physical improvement, maintenance, or upkeep of the Property; and ☐ other relevant factors. No one factor is dispositive without weighing all relevant circumstances.

10. MANNER OF PARTITION

10.1. Plaintiff ☐ requests division of the Property in kind according to the parties' interests; OR ☐ requests sale and division of the net proceeds because [PLEAD SPECIFIC FACTS SHOWING WHY SALE IS MORE EQUITABLE THAN DIVISION]. If the Partition of Real Property Act applies, Plaintiff also alleges [FACTS CONCERNING THE FACTORS IN CCP § 874.319] and requests that the Court apply CCP §§ 874.318-874.320. (CCP §§ 872.230(e), 872.810, 872.820.)

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 perform the duties ordered by the Court.

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;

B. ☐ For an order appointing a referee to divide the Property in kind or, if sale is ordered under the applicable standard in CCP § 872.820 or §§ 874.318-874.320, 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 incurred for the common benefit and the fees and expenses of the referee, 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. Partition of concurrent interests is as of right unless barred by a valid waiver, subject to CCP § 872.730. A right to partition does not itself establish a right to sale; the court applies the division or sale rules and, where applicable, the Partition of Real Property Act. (CCP §§ 872.210, 872.710, 872.810, 872.820, 874.313.)

Lis pendens. Immediately upon filing, Plaintiff shall record a notice of pendency of action in each county where real property described in the complaint is located. Failure to record requires the court to order recordation and stay the action until recordation. (CCP § 872.250.)

Title report. If a title report is necessary, CCP § 872.220 permits Plaintiff to obtain it before suit and disclose where parties may inspect it; the court may also authorize a party to procure one. CCP § 872.230 requires the complaint to identify Plaintiff's interests and materially affected interests of record or actually known to Plaintiff.

Partition of Real Property Act (AB 2245). Under CCP § 874.311, the current Act applies to partition actions filed on or after January 1, 2023, concerning property held in tenancy in common when no agreement in a record binding all cotenants governs partition. It is not limited to inherited property. Where it applies, review the appraisal, cotenant buyout, partition-in-kind, and open-market-sale procedures before pleading relief.

Accounting. CCP § 872.140 allows the court to order accounting, contribution, or other compensatory adjustments according to equity. Plead the facts supporting any requested offset for rents or ouster.

Attorney's fees. Reasonable attorney's fees incurred or paid for the common benefit are costs of partition under CCP § 874.010(a). The court apportions partition costs in proportion to interests or as otherwise equitable under CCP § 874.040.

14. FILING AND SERVICE

After filing the complaint, record the notice of pendency of action required by CCP § 872.250 immediately. Arrange service of the summons and complaint under the applicable service rules. File proof of service of summons after service unless the defendant has previously made a general appearance. (CCP §§ 413.10, 417.30.)

15. SOURCES AND REFERENCES

• Cal. Code Civ. Proc. §§ 872.210, 872.710 (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, 874.040 (Costs and apportionment)
• Cal. Code Civ. Proc. §§ 874.311-874.323 (Partition of Real Property Act, AB 2245, Stats. 2022 Ch. 82)
• Cal. Code Civ. Proc. §§ 413.10, 417.30 (Service and proof of service)

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