Co-owners do not always agree about whether to keep, refinance, rent, or sell a property. One owner may want to remain in the home while another wants to recover that owner’s share of the equity. Subject to important exceptions, California partition law generally provides a way to end an unwanted co-ownership relationship.
The Short Answer
One co-owner ordinarily cannot privately sell the entire property or transfer another owner’s interest. A qualifying co-owner may, however, file a partition action asking the superior court to divide the property or order a sale.
Code of Civil Procedure section 872.210 identifies persons authorized to commence a partition action. Section 872.710 generally recognizes a right to partition concurrent interests unless partition is barred by a valid waiver.
That does not mean the plaintiff automatically receives the exact remedy requested. The court must determine the parties’ interests, whether an agreement limits partition, which procedure applies, and whether the property should be divided or sold.
Review the Deed and Agreements First
The recorded deed is important, but it may not answer every question. The parties should also review the title history, loan documents, co-ownership agreements, rights of first refusal, settlement agreements, and any partnership, trust, probate, or LLC documents affecting the property.
A valid agreement may waive, postpone, or condition partition. Special rules may also apply to spouses or putative spouses, community or quasi-community property, trust property, probate assets, partnership property, or property titled in an entity.
California’s Statutory Buyout Procedure
For partition actions filed on or after January 1, 2023, California’s Partition of Real Property Act applies to qualifying real property held in tenancy in common when no agreement in a record binding all cotenants governs partition.
When a cotenant requests partition by sale, the Act generally provides a valuation process and allows cotenants who did not request sale to elect to buy the interests of those who did. If the interests are not bought, the court considers partition in kind unless physical division would cause great prejudice to the cotenants as a group. If sale is required, an open-market sale is generally preferred unless another method would be more economically advantageous and in the cotenants’ collective interest.
A cotenant requesting sale should understand that the request may place that cotenant’s own interest into the statutory buyout process.
What if the Act Does Not Apply?
Traditional partition law still permits partition in kind, partition by sale, and, when the parties agree, partition by appraisal. Under Code of Civil Procedure section 872.820, the court may order a sale when the parties agree or when sale would be more equitable than physical division.
For a single-family residence on an ordinary lot, physical division is often impractical. The result nevertheless depends on the property, the governing agreements, and the evidence.
Practical Alternatives
Before litigating, the owners may compare:
- A voluntary listing and sale;
- A negotiated buyout based on an agreed appraisal;
- Refinancing that removes one owner from the debt and title;
- Mediation; or
- A structured timetable for repairs, occupancy, and sale.
If agreement is impossible, a partition action may provide an exit. The financial allocation of the proceeds, including mortgage, tax, repair, improvement, rent, and occupancy issues, is a separate accounting question.
Legal Authorities and Public Resources
- California Code of Civil Procedure §§ 872.210, 872.710 and 872.820
- California Partition of Real Property Act, Code of Civil Procedure §§ 874.311–874.323
- LEG Investments v. Boxler (2010) 183 Cal.App.4th 484
Related practice areas: Real Estate Litigation