Partition action suits were created with the intention of settling disputes over jointly owned real estate. Most notably, partition action relies on the legal system to determine what to do with a home’s equity when co-owners can’t come to an agreement. That said, simply exercising your right to partition won’t be enough to get your way. You need to understand how to win a partition action case in order to place the odds in your favor.
Whether you are on the verge of partition action or simply want to learn more about the process, please keep reading. Our guide will teach you how to win a partition action by revealing everything there is to know:
How to win a partition action
A partition action ruling carries a lot of weight. The judge’s decision will ultimately decide the fate of each co-owner and their respective subject property. Therefore, it is in your best interest to learn how to win a partition action before the process even begins. Fortunately, you don’t have to reinvent the wheel in doing so; you just need to follow the steps outlined in our guide.
Determine if you have the standing to bring a partition suit
The first step in winning a partition action is determining whether or not you even have a case to bring in front of the court. In doing so, you need to be absolutely sure you are the co-owner of real property. Do not simply assume you inherited real estate or rely on the word of someone else. Will changes occur and misunderstandings happen, so do your research before assuming anything.
Instead, confirm the title of the property has been transferred to your name. The court will want to confirm that your name is on the deed and grants you title of ownership. Only once you are absolutely sure that you have equity in the home should you pursue the right to partition, let alone how to win a partition action.
Determine if you have the time and money to pursue partition action
The partition action process can be lengthy and expensive. While each case’s price and duration will reflect its own unique circumstances, it is not uncommon for partition action to take years to complete and upwards of $100,000 to facilitate.
There are always exceptions, but both plaintiffs and defendants need to determine if they are ready for what’s in store; if not, mediation is always a possibility. In fact, most co-owner discrepancies revolving around selling a home tend to end in mediation once they find out how involved partition action can be.
Define what it means for you to “win” a partition suit
In the event an agreement can’t be reached through mediation, the next step is to define what a win would mean for you. If for nothing else, winning is relative to each individual’s unique situation. What some co-owners may consider a win, others may view as a loss.
There are at least several ways to win a partition action suit, not the least of which include:
Selling your equity at a fair price
Selling the house on the open market
Receiving compensation for money put into the home
Renting the property
Keeping the property for yourself and buying out the other co-owners
There are countless outcomes that may arise from a partition action suit. Whether you are the plaintiff or defendant will play an important role in determining what constitutes a win. Above all else, however, is what you consider a victory. The only person who can claim victory in your situation is you. Figure out what you want out of the partition action suit and take calculated steps to get closer to your goal.
Remember, not all victories are the result of receiving money. While a win may result in more capital, it can be more important for some co-owners to retain assets with sentimental value or mend relationships which have been damaged.
Consider seeking out an attorney
If you don’t currently know how to win a partition action suit, don’t worry; you aren’t alone. Partition action cases can be complicated, but that doesn’t mean you have to go about them alone. Hiring a qualified attorney may simultaneously teach you how to win a partition action case and give you an advantage in the trial. A qualified partition attorney will cost money, but their services may well be worth the investment. With a good attorney on your side, you not only increase your chances of winning the case, but you may also save a lot of time and headaches.
Clearly communicate your desires
Those who already know how to win a partition action suit are more than aware of the importance of communication; those who don’t should learn to communicate with everyone involved in the process. There is perhaps no better way to win a partition action case than to communicate efficiently and effectively.
Proper communication has the power to resolve any discrepancies in mediation, without even going to court. Be sure to communicate with each co-owner and tell them exactly what you want, and what you may be willing to sacrifice. Put all your cards on the table and you may find common ground. If mediation can’t be reached, it is time to communicate with your lawyers. The more they know about your goals and intentions, the better equipped they will be in court.
Be willing to negotiate
It is in everyone’s best interest to remain open to negotiations. At the very least, negotiations may provide an acceptable resolution for everyone involved, without hefty fees. Of course, each owner may need to pay fees for a mediation lawyer, but the alternative is much more costly and time consuming. That’s not to say negotiations will always work, but rather that entertaining the idea can’t hurt. It is entirely possible for someone to sell an inheritance and avoid litigation altogether; you will never know until you ask.
How long does it take to force sale of property?
To be perfectly clear, there is no universal timetable partition action cases abide by. The duration of each case is entirely dependent on the specifics of the property and the people named in the suit. More complex cases will usually take longer than their straightforward counterparts. It is worth noting that there are always exceptions. It is entirely possible for complex cases to be resolved faster than those with more simple terms.
While the process will vary from case to case, it is reasonable to expect a partition action to take anywhere from 18 months to 24 months. Cases on the shorter end of the spectrum tend to have more agreeable co-owners and organized litigation. Cases on the longer end are usually prolonged by the forcible sale of the property, bureaucratic obstacles, and difficult co-owners.
Commonly asked questions about winning a partition action
Learning how to win a partition action suit starts with asking the right questions. In order to give yourself the best foundation to build a case off of, try answering the following questions yourself.
Do I have to go to court to win a partition action?
Going to court will ultimately lead to a judge deciding the fate of each co-owner. Therefore, you can win a partition action case in court. That, however, is not to say you have to go to court to win. Instead of going to court, co-owners may also attempt to solve their differences through mediation. Even if the case has been filed, there’s always the opportunity to settle without going to trial. With the help of an experienced attorney, co-owners may be able to negotiate a resolution without the court, or the added fees.
Can a partition deed be challenged?
It is possible to challenge a partition action, but only when there’s evidence of fraud or duress. If there is clear evidence the ruling was made in the presence of fraud or duress, participants may challenge the outcome. Outside of these two exceptions, a partition action ruling can’t be challenged or stopped.
Who pays for partition action in California?
In the United States, both plaintiffs and defendants are typically expected to pay for the fees associated with the partition action process. Upwards of $100,000 (depending on the state and circumstances of the case), fees are known to be exorbitant and can include everything from the cost of retaining an attorney to selling the subject property.
Some states provide unique mechanisms to seek attorney’s fees in the partition action process, and California is no exception. The state of California has the ability to award attorney fees, therefore requiring one side to pay for the others’ costs.
According to California Code of Civil Procedure 874.040, “The court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.” In other words, the court has the power to divide the cost of attorney fees, relative to each party’s equitable interest. While both sides are usually expected to pay their own fees, the court may award fees to one side or the other, essentially lowering the cost.
Guarantee the Future of Your Property: Update Your Estate Plan
For better or for worse, a partition action ruling will have lasting ramifications on everyone named in the case. Instead of leaving your fate up to the court, it is in your best interest to go into the process prepared. Following the steps outlined above and learning how to win a partition action should place the odds in your favor.
While the process can be intimidating, there’s no reason to go through it alone. Here at Trust & Will, we’re here to help keep things simple. You can create a fully customizable, state-specific estate plan from the comfort of your own home in just 20 minutes. Take our free quiz to see where you should get started, or compare our different estate planning and settlement options today!
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