Cal. Code Civ. Proc. §§ 872.010 et seq., 874.311 et seq.
Partition: an absolute right, and the 2023 law that changed how it ends
A claim in California superior courts · Last verified August 26, 2026
Partition is the remedy for co-owners who cannot agree. One of them files, and the court either divides the property or orders it sold and divides the money.
The right is absolute. A tenant in common does not have to show the other owners behaved badly, or that division is fair, or that they tried to negotiate. CCP § 872.710 directs partition as of right where the co-ownership interest is established. The other owners cannot refuse.
What changed in 2023 is what happens next. The Partition of Real Property Act gave co-owners an appraisal, a right to buy out the party who filed, and — if it still goes to sale — a preference for an open-market sale over an auction. A forced sale is no longer the automatic consequence of a partition action.
What the claim is
You own property jointly with someone and want out. Partition ends the co-ownership: either the property is physically divided, or it is sold and the proceeds are divided.
The recurring situations: inherited property held by siblings; a break-up between unmarried co-owners; a failed investment between partners; a co-owner who will not contribute to the mortgage or taxes; one owner occupying the property while the others get nothing.
Where the right comes from
CCP § 872.010 and following, a complete statutory scheme enacted in 1976.
CCP §§ 874.311 through 874.323, the Partition of Real Property Act, added by AB 2245 and effective January 1, 2023.
What a plaintiff has to prove
There is no CACI instruction. Partition is equitable, tried to the court, and usually referred to a referee appointed under CCP § 873.010.
What the plaintiff must establish:
- An ownership interest in the property giving a right to partition — tenancy in common, joint tenancy, or a partnership interest in some circumstances.
- A description of the property and the interests of all parties.
- That partition is proper — which, given the absolute right, means the interest exists and has not been waived.
The complaint must be verified, and a lis pendens should be recorded under CCP § 405.20 immediately.
In kind or by sale
Division in kind is the statutory preference. CCP § 872.810 directs the court to order the property physically divided unless sale would be more equitable.
In practice, sale is far more common — a single-family house cannot be cut in half, and the "more equitable" finding is readily made for most residential property. Division in kind survives mainly for undeveloped acreage.
The party seeking sale bears the burden of showing it would be more equitable than division.
The Partition of Real Property Act — what changed in 2023
The Act applies to property held by tenants in common where there is no binding agreement governing partition. It inserts several steps before any sale:
Notice and a determination. The court determines whether the Act applies before ordering partition.
An appraisal. Under CCP § 874.316, the court determines the property's fair market value, ordinarily by ordering an independent appraisal, and notifies the parties of the value found.
A buyout right. Under CCP § 874.317, any co-owner who did not request partition by sale may buy out the interest of the co-owner who did, at a price based on the appraised value multiplied by their fractional interest. The non-filing owners get a set period to elect, and if more than one elects they take proportionally.
And if nobody buys, an open-market sale is preferred. The Act directs sale by open market through a broker at a price no lower than the appraised value, rather than the auction that previously followed — because auctions of fractional interests reliably produced sales far below market value.
This was heirs' property legislation. The pattern it addressed is well documented: a family holds land through generations without a will, ownership fragments among dozens of heirs, an investor buys a small fractional interest, files for partition, and forces an auction at which the investor is the only serious bidder. The Act does not remove the absolute right to partition. It removes the ability to convert that right into a below-market acquisition.
How long you have to file
There is generally no limitations period running against a co-owner in possession. The right to partition is a continuing incident of co-ownership, and it does not expire because time has passed.
The exception is ouster. Where one co-owner has excluded the others and held adversely, the adverse possession clock can run — five years of open, notorious, hostile, continuous possession with payment of all taxes. Short of ouster, mere sole occupancy does not start any clock.
A claim for an accounting of rents and expenses is subject to ordinary limitations periods, so a co-owner seeking reimbursement going back many years may recover only for the recent portion.
What has to happen before you file
Nothing by way of notice or demand.
But name everyone with an interest. All co-owners, lienholders, and encumbrancers must be joined. An incomplete action produces a judgment that does not clear title.
And check for a waiver. The right to partition can be waived by agreement, express or implied, and a co-ownership agreement, a partnership agreement, or the terms of a trust may bar the action outright. That is the first defense a defendant looks for.
Character: joinder is a substantive requirement of an effective judgment, not a curable formality in the ordinary sense — the judgment binds only the parties.
Who can be sued — and who can bring it
Any co-owner may bring it. Tenants in common and joint tenants both have the right.
All other owners and interest-holders are defendants, including lenders and lienholders whose security will be affected.
A spouse cannot use partition to divide community property — that is a dissolution proceeding under the Family Code, and partition is not available as a substitute.
A remainderman generally cannot force partition against a life tenant.
Common defenses
Waiver by agreement, express or implied.
No qualifying ownership interest.
The property is community property, requiring a family law proceeding.
Partition in kind should be ordered rather than sale — a defense to the manner rather than the right.
Equitable adjustment, which is not a bar but reshapes the outcome: a co-owner who paid more than their share of the mortgage, taxes, insurance, or necessary repairs is entitled to reimbursement from the proceeds, and a co-owner who occupied the property exclusively may be charged rent.
Anti-SLAPP does not apply. A dispute over co-owned property is not protected activity.
What the claim pays
Division of the property, or division of the proceeds of sale, adjusted by the accounting.
The accounting is where most of the money moves. Under CCP § 873.290, the court adjusts the parties' accounts — contributions to purchase price, mortgage payments, taxes, insurance, necessary repairs and improvements on one side; the reasonable rental value of exclusive occupancy on the other. A co-owner who paid everything for years recovers it off the top, before the proceeds are split.
Costs and fees are apportioned, not shifted. This is the unusual part. Under CCP § 874.010 and following, the costs of partition — including reasonable attorney's fees incurred for the common benefit — are apportioned among the parties in proportion to their interests, rather than awarded against a loser. Everyone pays their share of the plaintiff's lawyer, because the action benefits all owners by clearing the co-ownership.
Fees incurred for a party's own contested benefit are not shared — only work for the common benefit qualifies, and the line between them is litigated.
Jury trial: no. Partition is equitable throughout.
What people get wrong
"They can refuse to sell." They cannot. The right to partition is absolute for a qualifying co-owner.
"I'll be forced to sell at auction." Not since 2023, in most cases. Under the Partition of Real Property Act the other co-owners get an appraisal and a buyout right first, and an open-market sale is preferred over auction.
"I filed, so they pay my legal fees." No. Fees for the common benefit are apportioned among all owners in proportion to their interests, including yours.
"I've paid the mortgage alone for years and get nothing extra." You do — the accounting reimburses contributions before the proceeds are divided.
"I've lived there alone, so that's my right as an owner." It is, but you may be charged the reasonable rental value in the accounting.
"It's been twenty years, so I've lost the right." Generally not. Partition does not expire absent ouster and adverse possession.
"We're married, so I'll file for partition." Community property is divided in a dissolution proceeding, not by partition.
Where it came from
Partition began in equity as relief from the impossibility of forcing co-owners to cooperate, and the absolute right reflects a policy choice as old as the action: the law will not compel anyone to remain in co-ownership. California codified the modern scheme in 1976, with the referee procedure and the in-kind preference.
The in-kind preference was already largely theoretical by then, and the practical result was that a partition action meant an auction. That worked acceptably where the co-owners were in a genuine dispute over a divisible asset. It worked badly where they were not.
The Partition of Real Property Act, effective January 1, 2023, is the response. It comes from a national model act aimed at the loss of heirs' property — most acutely land held by Black families in the rural South, but the mechanism is general — where the absolute right to partition had become a tool for acquiring family land at a fraction of its value.
What the Act changed is telling: it left the right untouched. A co-owner can still force the end of the co-ownership. What they can no longer do is force it to end at an auction price.
Common questions
Can my co-owner stop me from forcing a sale?
No. The right to partition is absolute for a tenant in common or joint tenant, unless it was waived by agreement. They cannot refuse.
Will the property be auctioned off?
Usually not, since January 1, 2023. Under the Partition of Real Property Act the court orders an appraisal, the other co-owners get a right to buy out your interest at the appraised value, and if no one buys, an open-market sale through a broker is preferred over an auction.
Who pays the attorney's fees?
Everyone, in proportion to their interests. Fees incurred for the common benefit are apportioned rather than shifted to a loser — which surprises plaintiffs who expected to be reimbursed.
I paid the mortgage and taxes alone. Do I get that back?
Yes. The court adjusts the parties' accounts before dividing the proceeds, reimbursing contributions to the mortgage, taxes, insurance, and necessary repairs.
My co-owner has lived there rent-free for years. Does that count?
It can. Exclusive occupancy may be charged at reasonable rental value in the accounting, offsetting their share.
Is there a deadline?
Generally no. Partition is a continuing incident of co-ownership. The exception is where a co-owner has ousted the others and held adversely long enough to acquire title by adverse possession.