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USE NOTE

This article, and the others listed above, are originals written by Rolando Pasquali. Many were published in legal journals and in newspapers of general circulation. Each article is based upon general principles of California Law in existence at the time that it was written. The law constantly changes. Therefore the articles, including this one, may contain information which is out of date. Also, even a small difference in facts can change how the law applies to any situation. No information in this article or anywhere on this website constitutes legal advice. These articles do not create an attorney-client relationship between you and this office. If you need legal advice, contact this office or an attorney in your area

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Half of every dollar is in Real Estate

 

by Rolando Pasquali

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We were just finishing desert.The big man with the ruddy complexion used to wear a lot of gold. I couldn’t see why my parents liked them so. The wife was O.K., but the big guy was crass. My mom was in the kitchen doing dishes when he leaned over to me. He wanted to know what kind of lawyer I was going to become. “A good one,” I replied, smiling. He wasn’t amused. This guy was a real estate shark, and everybody in the neighborhood knew it. Now his headlights were shining on me, and I didn’t like the attention. He pulled out a single dollar bill. “See this,” he mused, “more than half of every dollar in this country is invested in real estate.” “Wow,” said I, changing the subject...”Do you think Jimmy Carter will get re-elected?”

If there was one thing my dad taught me, it was never to do business with friends...especially phonies who act like your friends. Unfortunately, not everyone heeds this advice. Many people, in rising price times, have become financial “partners” in real estate with those whom they don’t really care for. The law offers some help.

Partition

The law recognizes that sometimes, most often through inheritance, joint owners of real estate may not see eye to eye. If both sides can agree to sell and divide the proceeds, or if one owner is willing to purchase the other’s share, there’s no problem. But what about situations where one individual wishes to terminate a real estate relationship over the objection of the other? The answer is “partition.”

California law authorizes the Superior Court for the county where real property is situated to decide actions of partition. Partition comes in 3 forms: (1) if it’s big enough, the land can be physically divided, giving each owner separate title to their share; (2) the property can be sold, and the money divided; or (3) the property can be appraised under the supervision of the court, thereby allowing one owner to “buy out” the others based upon a price determined by the court to be “fair.”

Partition Can Be Hostile

If all owners agree on how to physically divide title to the land, a partition proceeding can also be filed. Depending upon location, local ordinances, and parcel size, the issue can sometimes be resolved without the courts. Unfortunately, however, some people get greedy. If they’re asked to sell their interest to a co-owner, the land mysteriously becomes worth thousands more than when they themselves are offered the opportunity to buy. It is because of people like those that many non-lawyers refer to “the partition court.”

A partition lawsuit is filed and all the parties who have an interest in the property are named. The court conducts a trial and determines what to do, the interest of each party, and even the priority of financial liens. The court can then order the property divided. In some cases, the court will order that the property be sold and the proceeds divided. Forced sale, however, is viewed by the court as a last resort. When only one owner seeks partition, the court presumes that the fairest thing to do is simply divide title. The court will only force a sale when all of the conditions of partition have been met and when it is shown that a division into sub-parcels of equal value either cannot be made or that dividing the land would greatly lower its value.

What You Should Do

As always, my advice remains “settle it if you can, stay out of court.” Partition proceedings are going to involve attorney fees, court costs, and the hiring of experts to survey and appraise the land. One way to break a true impasse might be jointly hiring a professional real estate appraiser and then negotiating. While that is going to involve some costs, it’s a lot less than you’ll pay me if we end up going to court.

- by Rolando Pasquali

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