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Initial Steps in Partition Actions

avatar-yatesBefore filing a partition action in court, the co-owner contemplating partition should obtain a preliminary title report for the purpose of identifying all persons with an ownership interest in the real property, and determining what liens exist on the property. The co-owner should also make an effort to assess the value of the property, if it is sold. If the dollar value of the liens is a large percentage of, or more than, the market value of the property, there is little point to partition. If the liens are worth significantly less than the market value of the property, then partition is probably a reasonable course of action.

After the preliminary steps outlined above, the co-owner seeking partition files the action and serves a copy of it on all of the other co-owners, who have 30 days to respond to the complaint. The partitioning co-owner is also required by the Partition Law to record a Lis Pendens, or Notice of Action, against the title of the real property. This Notice prevents sale of the property until the partition action is resolved.

Approximately 60 days after filing the 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.