(a) If all the interests of all cotenants that requested partition by sale are not purchased by other cotenants pursuant to Section 874.317, or if after conclusion of the buyout under Section 874.317 a cotenant remains that has requested partition in kind, the court shall order partition in kind unless the court, after consideration of the factors listed in Section 874.319, finds that partition in kind will result in great prejudice to the cotenants as a group. In considering whether to order partition in kind, the court shall approve a request by two or more parties to have their individual interests aggregated.
§ 874.318.Court Ordered Partition In Kind
Title 10.5. Partition of Real and Personal Property · Chapter 10. Partition of Real Property Act · Enacted 2021 · no amendments on record · Last verified July 28, 2026
In one sentenceSection 874.318 makes partition in kind the court's default choice once any buyout under § 874.317 concludes, unless the court finds, after weighing the § 874.319 factors, that dividing the property physically would greatly prejudice the cotenants as a group, in which case the court orders a sale under § 874.320 or dismisses the action if no cotenant sought one.
Full Text of § 874.318
(c) If the court orders partition in kind pursuant to subdivision (a), the court may require that one or more cotenants pay one or more other cotenants amounts so that the payments, taken together with the value of the in-kind distributions to the cotenants, will make the partition in kind just and proportionate in value to the fractional interests held.
(d) If the court orders partition in kind, the court shall allocate to the cotenants that are unknown, unlocatable, or the subject of a default judgment, if their interests were not bought out, a part of the property representing the combined interests of these cotenants as determined by the court.
Plain-English Summary
This section carries the chapter's protective preference for keeping land in the family forward from the buyout stage. If the buyout under § 874.317 didn't cover every interest of the cotenants who requested a sale, or if a cotenant who wanted partition in kind remains in the case, subdivision (a) makes partition in kind the ordered outcome — unless the court finds, weighing the factors § 874.319 lists, that dividing the property physically would greatly prejudice the cotenants as a group. Along the way, the court approves any request by two or more parties to have their interests aggregated, which can make an in-kind division more workable.
If the court doesn't order partition in kind, subdivision (b) sends the case to a court-ordered sale under § 874.320, or, if no cotenant ever requested a sale in the first place, dismissal of the action.
Subdivision (c) lets the court smooth out an in-kind division that isn't perfectly equal by requiring owelty payments — one or more cotenants paying others so the division, combined with those payments, is just and proportionate to everyone's fractional interests. Subdivision (d) handles cotenants who couldn't be found, are unknown, or defaulted and whose interests weren't bought out: the court allocates them a portion of the divided property representing their combined interests.
Frequently Asked Questions
What's the default outcome once the § 874.317 buyout process finishes?
Partition in kind, unless the court finds it would greatly prejudice the cotenants as a group after weighing the § 874.319 factors.
Can cotenants combine their interests to make an in-kind division work better?
Yes, the court approves a request from two or more parties to have their interests aggregated.
Can the court require an equalizing payment between cotenants getting in-kind shares?
Yes, under § 874.318(c) the court may require owelty payments so the division is just and proportionate to each cotenant's fractional interest.
What happens to the shares of cotenants who can't be found or never responded to the case?
The court allocates them a portion of the physically divided property representing their combined interests.
Amendment History
Added by Stats 2021 ch 119 (AB 633),s 2, eff. 1/1/2022.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 28, 2026.
· Official source
Also known as: partition in kind preference californiagreat prejudice partition in kind standard