it is not to my benefit to initiate this suit? No, why should you initiate such - let them file if necessary. A partition action is only necessary when the joint owners can't agree on what to do with a property.
How can I find out who the executor is?
The Register of Wills in the County where the decedent lived at time of death would have a record of who is what and what's been done. Go look up the decedent's name and they will let you pull the file to review.
Would this be my aunt, since it is not me? I have no idea - you will have to go look at the file.
Also, where would I go to find out if the estate is stil open and has the property been transferred? The Register of Wills - the file will indicate if the estate is still open or not.
I'm going to answer your original questions.
How do I file a suit for partition forcing the sale of a house? Is a lawyer necessary? Must an assessment on the property be accomplished before a partition?
Partition is the procedure for segregating and terminating common interest in the same parcel of property. The process does not necessarily involve a transfer of title; the parties already have the title, and their common tide is being divided among the co-owners. The partition changes the rights of the cotenants from common possession of the entire property to individual rights of exclusive possession. Ordinarily, in absence of a waiver or estoppel, each cotenant has an "absolute" right to partition the common property, even if the property is leased to another party or a cotenant or is subject to an easement, mortgage, or trust deed.
When a partition action is filed, the court may issue temporary restraining orders and injunctions to prevent waste, protect the property or its title, and restrain unlawful interference with the partition of the property. The court also has jurisdiction to appoint a receiver as an ancillary remedy. However, in California there is no precedent for the appointment of a receiver in a suit when no tenant in common is attempting to oust the plaintiff or is in any way interfering with his or her common possession and use of the property.
An important concept is that a partition action is usually considered an action in equity. Incentives are in a place that encourage each party to cooperate in order to generate the highest sale price and to minimize costs of the partition.
Determination of Partition Method- Division of Property
If the court finds that the plaintiff is entitled to partition, it will order the partition of the property and designate the partition method. There are four methods of partitioning or dividing property:
1. Division in Kind. A division in kind is a physical division of the property. Partition by this method is generally favored by most courts because it does not disturb the existing form of inheritance or compel a person to sell his or her property against his or her will. However, there are many instances when physical division is not possible or practical.
2. Partition by Sale. In this instance, the court will order that the property be sold and the proceeds be divided among the parties in accordance with their interest in the property if the parties agree to such relief or if the court determines that, under the circumstances, sale and division of the proceeds would be the most equitable course of action.
3. Partition by Partial Sale. The court may order that a portion of the property be sold and the remainder divided if it finds that such would be more equitable than division of the whole property.
4. Partition by Appraisal. In this case, one cotenant acquires the interests of the other co-tenants based on a court ordered and supervised appraisal.
The sale of property in a partition action is a "forced sale." It is forced in the sense that it is a sale under execution. An objecting co-owner is required to part with his or her interest in the property contrary to his or her expectations. However, it may not necessarily be a sale under duress or a sale that will generate a price short of market value. In California, the court can order the sale according to the methods and terms expressly agreed to by the parties. Otherwise, the court can order the sale in such a manner and at such price and terms as it deems proper. For example, it can order various lots or parcels sold separately or in bulk. It can also authorize a sale on credit and prescribe the appropriate terms of credit and security. The court may vacate a sale and direct a new sale if it finds that the sale was unfair, there was improper notice, the price is disproportionate to the value of the property; or a new sale will produce a higher price. However, the California Code of Civil Procedures requires that the sale be made within one year of the notice of sale.
Defining Partition Costs
The costs of partition, as defined in the California Code of Civil Procedures, includes:
1. Reasonable attorney's fees incurred or paid by a party for the common benefit
2. The fee and expenses of the referee
3. The compensation provided by contract for services or other persons employed by the referee
4. The reasonable costs of a title report
5. Other disbursements or expenses determined by the court to have been incurred or paid for the common benefit
Importantly, the court may apportion some or all of the partition costs among the parties in proportion to their interests or may make such other apportionments as may be equitable.
Legal Procedures in a Partition Action
The following summarizes procedures in partition actions:
* Compilation of Information. Preliminary groundwork for a partition suit requires the compilation and verification of basic information regarding the plaintiff, defendants, property, and cause of action. Documents to be obtained include (1) documents by which the plaintiff obtained interest in the property, (2) documents relating to liens, mortgages, deeds of trusts, and other encumbrances, (3) notices of any action relating to such liens or encumbrances, and (4) a title report.
* Preliminary Determinations. Several preliminary determinations must be made by the court that will impact total costs.
- Right to Partition. The right to partition is generally considered an absolute right of any cotenant, barring a waiver. There are instances where cotenants sign an operating agreement. The agreement may specify, among others, how the property is to be liquidated.
- Need for Temporary Restraining Order, Injunction, or a Receiver. These are sometimes necessary where there is an adversarial relationship in order to prevent waste, protect property or tide, or restrain unlawful interference with a partition.
- Method of Partition. A physical division of a property, although preferred by the courts, is not always possible, particularly in the case of a single commercial property or residence. A division by appraisal would perhaps be the desirable option in instances where one cotenant is interested in acquiring 100% interest from other cotenants. Otherwise, a division by sale is the most likely option.
* Complaint, Summons, and Lis Pendens. A complaint is drafted making the essential allegations regarding the partition action. Occasionally, there may be special circumstances or complications that require additional allegations. A summons is prepared for each defendant, as in civil actions and issued by the court clerk together with the complaint. Immediately after filing the complaint, the plaintiff must record a notice of pending action (lis pendens) with the county recorder. Prior to recording of the notice, a notice must be delivered to all involved parties.
* Answers. Defendants may make claims of any interest, controvert material allegations of the complaint that they do not wish to be taken as true, or make claims for contributions or other compensatory adjustments.
* Trial. The interests of the parties are put in issue, tried, and determined in the action. The plaintiff presents all evidence enabling the court to determine the title and interests. The court may appoint a referee to determine the status and priority of liens, if applicable. After finding that the plaintiff is entitled to partition, the court makes an interlocutory judgment that determines the interest of the parties in the property and orders a sale of the property. The court may appoint a referee to sell the property. The judge directs the plaintiff to prepare an interlocutory judgment of partition, which is then
presented to the clerk with a request for the judge's signature.
* Performance of Referee. The court may appoint a referee to sell the property by public auction or by private sale, whichever is more beneficial to the parties. A private sale allows the greatest exposure to the market and is the conventional means of selling most types of real estate. The services of an appraiser may be warranted in order to provide the court with a basis for identifying a fair sale price. The services of a real estate broker also may be warranted, if division is by sale.
* Consummation of Sale. Upon receiving an offer to purchase, the referee shall make a report to the court divulging the material facts of the sale. At a hearing, the court will examine the report and witnesses. The referee, purchaser, or any party may move the court to confirm or set aside the sale. A bidder may also make a written increased offer. The court may then confirm or set aside the sale. Upon confirmation, the referee shall execute conveyance, collect proceeds, and perform any other tasks necessary to consummate the sale.
* Disposition of Sale Proceeds. Proceeds of the sale are disbursed to the parties in proportion to their shares or interest in the property following payment of sale expenses, partitioning costs, and any liens in their order of priority.
Procedures of Defendants
In a legal action to partition property, the defendants proceed with the following steps:
* obtain facts and documents similar to plaintiff
* file a written plead in response to the summons within 30 days
* consider defenses to partition, i.e., nonentitlement of plaintiff or defects in complaint
* consider and, if warranted, file one or more of the following: (1) motion to strike, (2) motion for summary judgment, (3) motion for separate trial, (4) motion to advance, (5) motion to amend answer, and/or (6) motion to expunge lis pendens.
For the most part, defenses to a partition are limited and only occur in unusual circumstances. Likewise, appeals generally are not expected. Again, partition actions are considered actions in equity and some, or possibly all, of the costs to partition are shared by co-tenants. Although small skirmishes are not uncommon, defendants have little or nothing to gain from frivolous or contentious defenses or appeals.
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