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RESOLVING PARTITION ACTIONS AND AVOIDING PARTITION ACTIONS

As I have discussed in the prior article Partition Actions, a partition action is a lawsuit filed by one owner of real estate against a co-owner in the same piece of real estate to force the sale of the property or a potion of the property. In California it is a rare instance when a defendant to a partition action has a legitimate defense to the partition action. That is because in California any owner of property has an absolute right to sell their interest in that property. Consequently, there is typically very little in dispute in a partition action.

With that being the case, in most partition actions, the only participants in the partition action that truly benefit from the partition action are the attorneys. What I mean by this is that because there is typically no valid defense to the partition action, the partition action was unnecessary, and its end result could have been avoided by both owners of the property by agreeing to a sale of the property or the plaintiff’s interest in the property, the same or similar results the parties would have achieved through a partition action.

Lawsuits are expensive and if it is possible to avoid a partition action and resolve the dispute before it escalates to a lawsuit, it is in everybody’s interest to do so because of the costs associated with a partition action. Therefore, prior to filing a partition action, in most instances all possible efforts to try to resolve the dispute without the necessity of filing the partition action should be pursued.

Although it does not always resolve the dispute, it has been my experience that an attorney letter to the uncooperative co-owner, which sets out the law relating to partition, prior to the filing of the partition action, can be an effective method at times to resolve the dispute without the necessity of having to file a partition lawsuit.

Another effective tool is to utilize the mediation process prior to filing the partition action. See my article ADR (ALTERNATIVE DISPUTE RESOLUTION) AND MEDIATION, regarding the mediation process.

As discussed above, there are alternatives to a partition action available to a co-owner in real property who wants to sell their interest in the property and has an unwilling co-owner in that same property. I regularly represent clients in partition actions and in negotiating with co-owners of real property to avoid partition actions in Walnut Creek, Oakland, the East Bay, and throughout the Bay Area, California. If you believe that you would benefit from a consultation regarding a partition action or resolving a dispute with a co-owner of real property, please feel free to contact me to discuss your case or to arrange for a consultation at (510) 465-0025.

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