The California Partition of Real Property Act applies to real property owned by tenants in common for legal actions for partition of real property that are filed on or after January 1, 2023.

When real property multiple co-owners who hold ownership as tenants in common do not get along, or cannot agree on what to do with the property, a partition action is a lawsuit filed to partition or to divide the real property.

The division can be in kind where the property ownership is physically divided into different parcels and APNs (by law this is preferred, but I seldom see it), or sometimes a tenant in common or tenants in common can buyout the other tenant or tenants in common, or sometimes the property is sold to a third party or to third parties and the sale proceeds are allocated between the tenants in common.

One situation in which tenant in common co-ownership can occur is when someone dies and real property in their estate or trust is distributed to multiple beneficiaries where each then owns a partial ownership percentage as a tenant in common. The ownership percentages can be equal but they do not have to be.

The Partition of Real Property Act applies to real property held by tenants in common, but interestingly the Act often references “cotenants,” but a cotenant or co-tenancy can be different than a tenancy in common.

What about where some of the co-owners own by tenancy in common and some own by joint tenancy,  or perhaps an LLC, or a partnership, or a corporation is one of the co-owners? Each case and situation must be evaluated carefully. If the Partition of Real Property Act does not apply, standard partition statutes still already exist and may apply.

Here’s an interesting one. Can a life estate or a remainder interest in real property be a tenancy in common to which the Act applies? The answer is yes, it is possible in some situations. For example, you could have two or more holders of life estate interests that are tenants in common, or you could have two or more holders of remainder interests that are tenants in common.

Each situation and case must be carefully evaluated. And since the Partition of Real Property Act is very new, there are few guiding legal authorities. I am doing a series of posts about the Partition of Real Property Act. Next up, the mandatory appraisal process, tenant in common buyout rights, and other issues and situations that arise in real property partition actions.

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

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David Tate, Esq. (and inactive CPA)

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David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.