One of the most common real property disputes that I come across has to do with the breakdown of the relationship between co-owners of a piece of real property. Obviously, divorce is a very common scenario which requires the division of real property, but there are other situations as well. Often, parents unwittingly place their children in situation that is ripe for disagreement. After both parents have passed away, siblings who remain as co-owners of the family residence often disagree with what to do with it. Those children with less emotional attachment to the home – due to stress in their own lives, geographical distance, or a multitude of other reasons – are fine with either renting it out or selling it. Other siblings – who may even still be living in the home – might prefer to hold onto it, even when it does not make economic sense. These situations often turn into ugly family arguments, or worse yet, litigation over what to do with the property.

The right of a co-owner to seek partition is governed by statute. The basic statutory provision is section 752 of the Code of Civil Procedure which provides, in pertinent part, that “[w]hen several cotenants own real property … an action may be brought by one or more of such persons, … for a partition thereof according to the respective rights of the persons interested therein, and for a sale of such property, or a part thereof, if it appears that a partition cannot be made without great prejudice to the parties.”

It has been said that “a cotenant is entitled to partition as a matter of absolute right; that he need not assign any reason for his demand; that it is sufficient if he demands a severance; and that when grounds for a sale are duly established it may be demanded as of right.” (De Roulet v. Mitchel (1945) 70 Cal. App. 2d 120, 124.)

However, one well-recognized limitation is that the right of partition may be waived by contract, either express or implied. For example, in one case, the court held that a property settlement agreement between a divorcing couple which provided that the family home was to remain in the name of the parties so long as the wife did not remarry constituted a waiver of the right of either party to partition the property so long as the restrictive conditions existed. (Miranda v. Miranda (1947) 81 Cal. App. 2d 61). In another case, the court found there was an “implied” waiver of partition where cotenants agreed to a plan designed to develop property over a period of time (Thomas v. Witte (1963) 214 Cal. App. 2d 322) or invested in property which was subject to a long-term lease with a view toward obtaining a secure source of investment income (Pine v. Tiedt (1965) 232 Cal. App. 2d 733).

Whether or not these legal principles favor my clients, I always recommend trying to work out an amicable resolution rather than resorting to litigation, which can be expensive and uncertain. Sometimes it is necessary to initiate litigation in order to get the parties to the bargaining table, but mediation is still possible. Over the years, I have helped numerous clients resolve similar disputes, usually through some type of buy-out or sale of the property. Sometimes family relationships can be repaired too, and sometimes not. But at least all parties agree in the end and litigation can be avoided or dismissed.