Approximately 60 days after filing a partition action, and assuming no efforts to resolve the legal action have been successful, counsel for the partitioning co-owner may, and should, file a written request with the Court seeking an order that partition is available for the real property at issue, and appointing a partition referee. The Court is required to appoint a referee who, for practical purposes, has control of the remainder of the partition action.
The partition referee will conduct fact-finding regarding the property and determine whether partition should be by sale or by division of the property. The referee will also conduct fact-finding regarding any claims the co-owners may assert. For example, in the example above concerning a brother and sister inheriting the parents’ home, the referee would determine what the market rental value of the home would have been if the sister had allowed the home to be rented. Finally, the referee will determine whether the referee’s fees and/or the attorneys’ fees of the co-owners relating to the partition action, should be split among the co-owners according to their ownership interest, or divided in some other way.
The referee presents his or her fact-findings to the Court in the form of a recommendation, which the Court will usually adopt more or less unchanged. If the referee recommends, and the Court orders, a sale of the property, the referee will be tasked with arranging and completing the sale, which must be approved in a Court hearing. If the referee recommends, and the Court orders, division of the property, the referee will be tasked with arranging and completing the subdivision of the property in compliance with local land use laws and ordinances.
In most cases, and dependent on how busy the Court is in which the partition action is filed, partition actions can be completed within 18 months of the filing of the action. Most lawsuits are settled before trial. This is even more the case for a partition action, because there are few or no defenses to a partition. Additionally, co-owners usually have an incentive to accept the inevitability of partition and help move the sale forward, because in most cases there will be a cash distribution at the end of the process.