A default partition judgment allows the court to order the sale of the property without the absent co-owner’s involvement. When a co-owner files a partition action and the other party refuses to respond, the case moves forward.

Co-owners have an absolute right to partition under California law. Whether the other party engages or not, the court has full authority to proceed and a defaulting co-owner cannot use their silence to block or delay the outcome.

What Is a Default Judgment in a California Partition Action?

A default judgment occurs when a defendant is properly served, but fails to respond within the time allowed by law, which is usually 30 days. The filing co-owner applies for entry by default, ending the other party’s ability to participate in the case.

Under Cal. Code Civ. Proc. § 872.710(b), partition “shall be as of right unless barred by a valid waiver.” The court decides how to carry out the partition, not whether to allow it.

The defaulting co-owner keeps their property share but loses the ability to:

• Raise defenses or contest ownership percentages
• Challenge the property’s appraised value
• Negotiate the manner of partition
• Assert credits for mortgage payments, repairs, or taxes paid

How the Default Process Works in a California Partition Action

Service of the partition complaint starts the clock. When a co-owner cannot be located, Cal. Code Civ. Proc. § 872.310(b) authorizes service by publication, which applies to:

• Co-owners with unknown addresses
• Co-owners with a known address, but are evading service

Sometimes, this involves co-owners who are incarcerated and co-owners whose mental illness prevents engagement.

Once served, the defendant has 30 days to file an answer under Cal. Code Civ. Proc. § 872.410 to contest the case. Without one, the plaintiff requests entry of default and moves for a default judgment.

What a Default Judgment Means for Both Co-Owners in a California Partition Action

A default does not give the filing co-owner everything, even if the co-owner abandons the property. The court still confirms each party’s ownership share before granting relief. 

The court enters an interlocutory judgment of partition, appointing a partition referee to manage the partition by sale and distribute proceeds. If the absent co-owner refuses to sign the deed at closing, the referee signs on the court’s authority instead. 

Any co-owner served with a partition complaint should contact a partition attorney before the 30-day deadline.

Don’t Let an Unresponsive Co-Owner Delay Your Partition Action

Talkov Law can help. Unlike a letter warning of partition, a partition action can end the co-ownership if the recipient throws it in the trash. With twelve full-time partition attorneys and experience in over 575 partition actions throughout California, our team handles every step. Call (877) PARTITION (727-8484) today or contact us online to get started.

The post What is a Default Judgment in a Partition Action? appeared first on Talkov Law Partition Attorneys.

Yes. In California, you can file a partition action to force the sale of jointly owned investment property, even if the other co-owner does not agree.

When co-owners of an investment property disagree on whether to sell, refinance, or manage the property, the situation can quickly become frustrating and financially draining. 

Fortunately, California law provides a clear solution through a partition action, which allows you to exit the investment and recover your share.

Partitioning an Investment Property in California

Under California Code of Civil Procedure § 872.210, any co-owner of real property has the absolute right to file a partition action. This applies equally to investment properties, including rental homes, multi-family units, and commercial real estate.

In most cases, the court will order a partition by sale, meaning:

• The property is sold
• The proceeds are divided among the co-owners
• Adjustments are made based on each party’s financial contributions

This is especially common with investment properties, where physical division is impractical and selling the property is the most efficient outcome.

Partition Disputes Between Investment Property Co-Owners

Investment properties often involve ongoing financial obligations and expectations of profit, which can lead to disputes such as:

• One co-owner wants to sell, while the other wants to hold
• Disagreements over rental income or reinvestment
• Unequal contributions to mortgage, repairs, or improvements
• One co-owner mismanaging the property

These disputes rarely resolve on their own. A partition action allows the court to step in, force a resolution, and ensure each co-owner receives their fair share.

Recovering Contributions to Investment Property in a Partition Action

One of the key advantages of a partition action is the ability to account for unequal financial contributions.

Courts may consider:

• Mortgage payments
• Property taxes
• Insurance
• Repairs and improvements
• Rental income collected

Under California Code of Civil Procedure § 874.140, the court can allocate costs and credits among the co-owners based on what is equitable. This means a co-owner who paid more than their share may recover those contributions from the sale proceeds.

Why Partition Is Often the Best Option for Investment Properties

Unlike a primary residence, an investment property is typically held for financial gain. When co-owners are no longer aligned, continuing to co-own the property can lead to lost income, mounting expenses, and ongoing conflict.

A partition action provides a clean exit by:

• Forcing a sale of the property
• Ending the co-ownership relationship
• Ensuring a fair distribution of proceeds

For many co-owners, it is the most effective way to protect their investment and move forward.

Partition Actions for Investment Properties with Talkov Law

If you co-own an investment property and your partner refuses to cooperate, you do not have to remain stuck in a bad investment. 

Talkov Law has twelve full-time partition attorneys who have handled 575 partition actions throughout California, helping clients force sales, recover contributions, and resolve co-ownership disputes efficiently. 

Call (877) PARTITION (727-8484) or contact us online to speak with an experienced California partition attorney today.

The post Can I Partition an Investment Property? appeared first on Talkov Law Partition Attorneys.

Los Angeles’ controversial “mansion tax,” officially known as Measure ULA, has created substantial confusion for co-owners, buyers of a fractional interest, investors, and parties involved in partition actions. One recurring question is whether the tax applies when only a fractional interest in real property is transferred rather than the entire property.

The answer is: generally, Measure ULA applies based on the value of the interest conveyed—not necessarily the value of the entire property. Thus, it appears that purchasing only a fractional interest in real estate in the City of Los Angeles where that fraction is under the limits does not trigger the mansion tax.

What Is Measure ULA?

Measure ULA imposed an additional real property transfer tax in the City of Los Angeles effective April 1, 2023. Under the Los Angeles Municipal Code (LAMC) Section 21.9.2(b):

“[S]tarting on April 1, 2023, there is hereby imposed a tax known as the “Homelessness and Housing Solutions Tax” on each deed, instrument or writing by which any lands, tenements, or other realty sold within the City of Los Angeles shall be granted, assigned, transferred or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by the person or their direction, when the consideration or value of the interest or property conveyed (including the value of any lien or encumbrance remaining thereon at the time of sale) exceeds:

   (1)   $5,000,000 but is less than $10,000,000, a tax at the rate of 4% of the consideration or value; or

   (2)   $10,000,000 or greater, a tax at the rate of 5.5% of the consideration or value.”^[1]Los Angeles Municipal Code § 21.9.2.

These thresholds are adjusted annually. The tax currently applies as follows:

• 4% tax on transfers exceeding approximately $5.3 million
• 5.5% tax on transfers exceeding approximately $10.6 million

The thresholds will increase again in June 2026 to 4% tax on transfers exceeding $5.4 million and 5.5% tax on transfers exceeding $10.9 million.

Unlike ordinary documentary transfer taxes, Measure ULA dramatically increases closing costs on qualifying transactions.

Does the “Mansion Tax” Apply to Fractional Interests?

The mansion tax appear to apply only if the value of the transferred fractional interest exceeds the applicable threshold.

The Real Property Transfer Tax and Measure ULA FAQ explains that Measure ULA applies to the “consideration or value of the real property interest conveyed.” This wording is significant because it focuses on the specific interest being transferred rather than automatically looking to the value of the entire property and is consistent with the text of LAMC § 21.9.2, which likewise focuses on the value of the “interest or property conveyed.”

For example:

• A property is worth $12 million (including the value of any lien or encumbrance)
• One co-owner sells a 25% tenant-in-common interest
• The buyer pays $3 million for that interest

In this scenario, the transferred interest is valued at $3 million, which is below the current Measure ULA threshold. Accordingly, Measure ULA would generally not apply, even though the entire property is worth substantially more than the threshold.

It’s also important to note that Measure ULA calculations can differ from ordinary Base Tax calculations as the Base Tax is “calculated based on net value of the property conveyed (exclusive of the value of any lien or encumbrance remaining thereon at the time of sale)” whereas the ULA tax is “calculated based on gross value (including the value of any lien or encumbrance remaining thereon at the time of sale)”.^[2]City of Los Angeles Finance Department – Measure ULA FAQ

Accordingly, mortgage allocations and debt assumptions can materially affect ULA analysis in co-owner buyouts and settlement transactions.

Why This Matters in Partition Actions

Fractional-interest transfers arise frequently in partition matters. Common scenarios include:

• One co-owner buying out another co-owner’s interest
• Transfers between family members
• Settlement agreements resolving co-ownership disputes
• Transfers into or out of LLCs or partnerships
• Pre-sale restructuring before listing the property

The transfer-tax consequences can differ dramatically depending on the structure of the transaction.

For example, if one co-owner purchases another co-owner’s 50% interest in a property worth $8 million, the conveyed interest may only be valued at approximately $4 million. That transfer may avoid Measure ULA entirely even though a later sale of the whole property could trigger the tax.

Substance Over Form Concerns

Parties should be careful not to assume that splitting transactions automatically avoids Measure ULA. The City of Los Angeles has not issued comprehensive regulations addressing every type of fractional-interest transaction. As a result, parties should expect taxing authorities to evaluate transactions based on their practical economic substance rather than solely their formal structure.

The City may challenge transactions that appear artificially structured to evade transfer taxes. For example:

• Multiple coordinated transfers
• Staged transactions
• Transfers through entities
• Straw-party arrangements

Courts and taxing authorities frequently apply a “substance over form” analysis when determining tax liability.

Accordingly, sophisticated transactions involving high-value Los Angeles real estate should be reviewed carefully by qualified counsel and tax professionals.

LLC and Partnership Transfers

Some investors attempt to structure transactions through LLCs or partnerships rather than direct deed transfers.

While certain entity-interest transfers may avoid transfer taxes under specific circumstances, the rules are highly technical and involve overlapping issues concerning:

• Documentary transfer tax
• Measure ULA
• Property tax reassessment
• Change in ownership rules
• Continuing partnership rules

Small details in drafting or timing can substantially affect tax consequences.

Certain exemptions applicable to documentary transfer taxes may also affect Measure ULA analysis, as some transactions exempt from the City’s ordinary real property transfer tax may likewise qualify for exemption from Measure ULA: “The ULA Tax will be not be applicable on documents that convey real property within the City of Los Angeles if the transferee is described under newly added sections 21.9.14 and 21.9.15 of the Los Angeles Municipal Code.”^[3]Los Angeles Finance Department – Measure ULA Frequently Asked Questions

Partition Sales and Measure ULA

In partition actions, Measure ULA may apply differently depending on the nature of the transfer.

Court-Ordered Sale of Entire Property

If the entire property is sold through a partition referee sale and the sales price exceeds the applicable threshold, Measure ULA will generally apply.

Buyout Between Co-Owners

If one co-owner buys out another co-owner’s fractional interest, the tax analysis usually focuses on the value of the interest conveyed rather than the value of the entire property.

Settlement Transfers

Settlement agreements involving deeds between co-owners can create unique transfer-tax issues depending on the consideration exchanged and the structure of the transaction.

Conclusion

Measure ULA can significantly affect the economics of resolving co-ownership disputes involving Los Angeles real estate. Fortunately, the tax generally applies to the value of the interest conveyed rather than automatically applying based on the value of the entire property.

That distinction may significantly affect how co-owner buyouts, partition settlements, and related transactions are structured. However, poorly structured transactions can trigger unintended tax consequences or invite scrutiny from taxing authorities.

Because Measure ULA remains relatively new, many transactional structures have not yet been extensively litigated or interpreted by courts. Future administrative guidance or judicial decisions could alter how the tax applies to complex co-ownership and entity-transfer transactions.

If you are involved in a co-ownership dispute, buyout, or partition action involving Los Angeles real estate, the experienced partition attorneys at Talkov Law Partition Attorneys can help evaluate the potential impact of Measure ULA and develop a strategy to protect your financial interests.

Talkov Law has handled over 575 partition actions throughout California and has a team of twelve full-time partition attorneys dedicated exclusively to partition law. To discuss your case, call Talkov Law at (877) PARTITION (727-8484) or contact us online for a consultation.

The post The Los Angeles Mansion Tax Fractional Interest Loophole appeared first on Talkov Law Partition Attorneys.

A partition of real property in California is a legal process that allows co-owners to force the sale when they cannot agree. Disagreements over whether to sell, how to use the property, or how to split expenses can quickly turn into serious conflicts. When co-owners reach a deadlock, a partition action is the ultimate legal solution to end the dispute and get your money out of the property.

California law treats the right to partition as absolute, meaning co-owners do not need the other party’s permission or agreement to move forward. If the goal is to sell the property and divide the proceeds, partition provides a court-supervised solution designed to end the dispute fairly.

What Does Partition of Real Property Mean?

A partition of real property is a legal process that allows one or more co-owners of real estate to force a division of the property. In California, any co-owner of property generally has the right to file a partition action to end co-ownership, even if the other owners do not agree.

Under California law, partition as to concurrent owners is a matter of right (Code of Civil Procedure § 872.710(b)). This means that if you own property with someone else, you typically cannot be forced to remain in that ownership arrangement indefinitely, unless you have entered into a valid agreement waiving that right.

Partition actions are commonly used when:

• One co-owner wants to sell, but the other refuses
• Co-owners disagree on how to manage or use the property
• There are disputes over financial contributions or expenses
• A relationship between co-owners has broken down

Types of Partition in California

There are generally three types of partition recognized under California law:

Partition by Sale

Partition by sale is the most common and practical form of partition. In these cases, the court orders the property to be sold and the proceeds divided among the co-owners according to their ownership interests.

In reality, most properties, especially single-family homes, cannot be physically divided without reducing their value or creating logistical issues. As a result, partition by sale is often the most efficient and equitable solution.

Partition by sale is typically used when:

• Co-owners cannot agree on how to use or manage the property
• The property cannot be physically divided (such as a single-family home)
• Division would significantly reduce the property’s value

California courts often favor partition by sale when it is “more equitable” than physically dividing the property (Code of Civil Procedure § 872.820).

Partition by Appraisal

Partition by appraisal is a process where one co-owner buys out the others based on the appraised value of the property. This can avoid a public sale, but it typically requires agreement between the parties, which is extremely rare in connection with the need for a court.

Partition in Kind

Partition in kind involves physically dividing the property between co-owners. While this may seem ideal, it is rarely practical in most California cases.

It is typically limited to large or rural properties where division is feasible. For most residential properties, courts will deny partition in kind if it would be impractical or reduce the property’s value, making it far less common than partition by sale.

Who Can File a Partition Action and Should You Hire a Lawyer?

In California, any co-owner of real property can file a partition action, including:

• Joint tenants
• Tenants in common
• Co-owners who inherited property
• Unmarried couples who purchased property together

Even a minority co-owner can force a partition. Ownership percentage does not eliminate the right to seek division.

While it is possible to file a partition action without a lawyer, these cases often involve:

• Court procedures and litigation strategy
• Property valuation disputes
• Financial accounting for contributions and reimbursements
• Negotiations with uncooperative co-owners

In fact, delaying a partition action can reduce property value, increase costs, and make disputes more difficult to resolve over time.

Working with an experienced partition attorney helps ensure the process is handled correctly and your financial interests are protected.

Speak with a California Partition Attorney Today

If you co-own property and cannot agree on what to do next, a partition action is a proven legal solution that puts you back in control. Whether you are dealing with a disagreement over selling, financial disputes, or a breakdown in a relationship, you do not have to navigate this process alone.

Talkov Law is California’s first, largest, and most experienced partition law firm, with twelve full-time partition attorneys who have handled over 575 partition actions throughout the state. Call (877) PARTITION (727-8484) or contact us online to discuss your situation and take the first step toward resolving your co-ownership dispute.

The post What Is the Partition of Real Property? appeared first on Talkov Law Partition Attorneys.

A co-owner who abandons a property in California does not lose their ownership rights, but their absence often creates financial strain that can be resolved through a partition action. 

When one co-owner stops contributing, the remaining co-owner is often left covering the mortgage and upkeep alone. This situation is common among unmarried couples, family members, and investment partners, and it is often a clear sign that a partition action is the most effective way to move forward.

But does abandonment mean the remaining co-owner gets full ownership? Not quite.

Does Abandonment Mean Loss of Ownership?

No. In California, simply leaving a property does not terminate ownership rights. A co-owner who abandons the property still retains their legal interest unless:

• They voluntarily transfer their interest, or
• A court orders a change in ownership (such as through a partition action)

This means the absent co-owner may still technically own part of the property, even if the co-owner has not paid the taxes, maintenance, or mortgage for months or years.

Financial Burden on the Remaining Co-Owner of Abandoned Property

When one co-owner abandons the property, the remaining co-owner often ends up covering:

• Mortgage payments
• Property taxes
• Insurance
• Repairs and upkeep

Under California law, these contributions can become critical in a partition action. 

Courts have the authority under Code of Civil Procedure Section 872.140 to allocate property related expenses among the co-owners based on what is equitable. As a result, a co-owner who pays more than their fair share may be entitled to reimbursement or credits when the property is divided or sold.

If a Co-Owner Abandons House, Can You Force Them Off Title? 

You generally cannot remove a co-owner from title without their consent. However, California law provides a powerful solution: a partition action.

Under California Code of Civil Procedure § 872.210, any co-owner has the right to file a partition action to divide or sell the property.

In most cases, the court will order a partition by sale, meaning:

• The property is sold
• The proceeds are divided among the co-owners
• Adjustments are made for unequal contributions

Serving Missing Co-Owners in a Partition Action

When a co-owner goes missing, courts have ways to ensure that the missing defendant can still be served to allow for the partition of the property. California partition statues provide that partitions can be served by publication in a newspaper, with certain conditions and with specific information. Indeed, service by publication is also proper under the Partition of Real Property Act. After a missing co-owner is served by publication or by ordinary service of process, but fails to respond, a default partition judgment can be entered by the court.

Can Abandonment of Co-Owned Property Strengthen Your Partition Case? 

Yes. While abandonment does not eliminate ownership rights, it can significantly impact the financial outcome of a partition case.

Courts may consider:

• Who paid the mortgage and expenses
• How long the property was abandoned
• Whether one party benefited from exclusive use

Default partition judgments are generally faster than litigated partition judgments, thereby speeding up the process. This can result in one co-owner receiving a larger share of the sale proceeds.

Common Scenarios of Why Co-Owners Abandon Property 

Abandonment issues frequently arise in:

• Unmarried couples who purchased a first home together
• Inherited property between family members that have stopped contributing
• Investment partners where one party walks away from the deal
• Co-owners who have been incarcerated

In all of these scenarios, the remaining co-owner is often left searching for a way to resolve the situation and recover their financial contributions.

Partition Actions for Abandoned Co-Owned Property in California

If a co-owner has abandoned your property, you don’t have to stay stuck in limbo. Talkov Law’s team of twelve partition attorneys has handled over 575 partition actions, helping clients force a sale, recover contributions, and move forward.

Call (877) PARTITION (727-8484) or contact us online to speak with an experienced California partition attorney today.

The post Abandoned Property Partition Action: What to Do When a Co-Owner Walks Away appeared first on Talkov Law Partition Attorneys.

When co-owners of real estate decide to go their separate ways, a buyout is often the first solution discussed. One party keeps the property and pays the other for their share. However, this only works if the co-owner has the financial ability and is willing to follow through. When the buyout does not happen, many people feel stuck in co-ownership with no clear path forward.

While the law will not force the co-owner to but your interest, the court will give the co-owner a legal ultimatum to either buyout your share, or force the sale of the property through a partition action under California law.

Why Buyouts Often Fail

Buyouts frequently fall apart for practical reasons:

• The co-owner cannot qualify for refinancing, particularly if interest rates have risen since the mortgage on the property
• The parties disagree on the property’s value
• The parties disagree on offsets for unequal contributions to the property
• One party delays or refuses to complete the process, usually while living at the property

Even when both parties initially agree, financial limitations or disputes can prevent a buyout from happening.

You Do Not Have to Stay in Co-Ownership

Under California law, a co-owner of real property has an absolute right to partition. (Code Civ. Proc., § 872.710.)

This means:

• You do not need your co-owner’s consent
• You do not need to prove wrongdoing
• You cannot be forced to remain in co-ownership

If a buyout fails, the law provides a direct solution.

What Happens Next When a Buyout Fails

When co-owners cannot resolve the situation through a buyout, the typical next step is to file a partition action.

In most cases, the court will order a partition by sale. This means the property is sold and the proceeds are divided according to each owner’s interest.

The process generally includes:

• Filing a partition lawsuit
• Appointing a partition referee to manage the sale
• Marketing and selling the property
• Distributing the sale proceeds

For single-family homes and most residential properties, courts almost always order a partition by sale rather than trying to divide the property physically (also known as a “partition in kind”).

What to Know If a Buyout Fails

• A failed buyout does not leave you stuck in co-ownership
• California law allows you to force a sale through partition
• You do not need permission from your co-owner
• Courts will order the sale of the property upon co-owner request
• The proceeds are divided based on ownership interests and potentially offsets

When a Buyout Fails, Force the Sale with a Partition Attorney

When a co-owner cannot buy you out, a partition action provides a clear and enforceable path to resolving the dispute.

At Talkov Law, our team of twelve partition attorneys handles every step of the process, including filing the lawsuit, managing the sale, and resolving financial disputes between co-owners.

Call (877) PARTITION (727-8484) today to speak with a California partition attorney and take the next step toward resolving your property dispute.

The post Can You Force a Co-Owner to Buy Your Share? appeared first on Talkov Law Partition Attorneys.

When a co-owner refuses to communicate about selling jointly owned property, California law allows you to force a resolution through a partition action. For the co-owner seeking a resolution, this lack of response can feel like being trapped in a situation with no clear path forward.

Why Co-Owners Refuse to Communicate

It is common for co-owners to avoid communication when there is a disagreement about whether to sell the property. In many cases, one co-owner may believe that ignoring the situation will delay or prevent a sale altogether.

This “silent treatment” can leave the co-owner who wants to sell feeling stuck, especially when mortgage payments, maintenance, or property taxes continue to accrue. However, your co-owner refusing to communicate does not stop your legal rights as a co-owner.

Sending a Formal Letter Before Filing a Partition Action

Before filing a lawsuit, one effective step is to have a partition attorney send a formal letter warning of a partition action on your behalf. This approach signals that the situation is serious and that legal action may follow if the issue is not resolved.

A letter from an attorney can:

• Show that you are prepared to take legal action
• Clearly explain your absolute right to partition under California law
• Outline the financial and legal consequences of continued inaction
• Provide an opportunity to resolve the dispute without litigation

In many cases, this step alone is enough to prompt a response from an otherwise unresponsive co-owner.

Filing a Partition Action in California

If your co-owner continues to refuse communication, filing a partition action may be the most effective solution.

California law is clear that co-owners have a right to force the division or sale of property.

California Code of Civil Procedure § 872.710(b) states that partition of real property “shall be as of right unless barred by a valid waiver.”

This means that even if your co-owner ignores you entirely, the court can step in to resolve the dispute. In most cases, this results in a partition by sale, where the property is sold and the proceeds are divided among the co-owners.

What Happens If Your Co-Owner Ignores the Lawsuit?

Ignoring or delaying a partition lawsuit does not stop the case. In fact, it can significantly harm the unresponsive co-owner.

If a co-owner fails to respond after being served with a partition complaint, the court may enter a default partition judgment. A default judgment occurs when a defendant fails to appear in the action, which can result in the court granting the relief requested.

Once a default is entered, the non-responding co-owner may lose the ability to participate in the case, and the court can proceed toward ordering the sale of the property by way of a partition referee.

Take Action to Resolve a Co-Ownership Dispute

A co-owner’s refusal to communicate can be frustrating, but it does not prevent you from moving forward. California law provides a clear path to resolution through a partition action, even when the other party refuses to engage.

Talkov Law has twelve full-time partition attorneys and has handled 575 partition actions throughout California. Call (877) PARTITION (727-8484) or contact us online to get help resolving your co-ownership dispute.

The post What Happens When a Co-Owner Refuses to Communicate About Sale or Buyout? (Partition Actions) appeared first on Talkov Law Partition Attorneys.

When a trust beneficiary co-owns inherited property with other beneficiaries, disputes over the property are common. One question that frequently arises is whether a beneficiary who files a partition action to force the sale or division of that property risks triggering a no contest clause buried in the trust. The short answer is: almost certainly not — but understanding why requires a careful look at how California law treats these two very different legal tools.

What Is a No Contest Clause?

A no contest clause is a provision in a California trust or will stating that if a beneficiary challenges the estate without probable cause, they may forfeit their inheritance.

A sample no contest clause that could raise concerns in a partition case may look something like this:

“If any beneficiary seeks to challenge or circumvent the terms of this trust, including but not limited to the distribution of trust property, they shall forfeit all benefits they would otherwise receive under the trust.”

At first glance, this sounds powerful and sweeping. In practice, however, California law has dramatically curtailed the reach of no contest clauses.

How California Law Restricts No Contest Clauses

Prior to 2010, California courts had broad discretion in enforcing no contest clauses. That changed with the enactment of California Probate Code §§ 21310–21315, which now govern no contest clauses with strict limitations.

Under current California law, a no contest clause can only be enforced against a “direct contest” — meaning a pleading that:

• Alleges the invalidity of a trust or protected instrument based on grounds such as forgery, lack of capacity, undue influence, duress, fraud, or mistake, and
• Is brought without probable cause.

This is a two-part test. Even if a beneficiary files what looks like a challenge, if they had probable cause to bring the claim, the no contest clause cannot be enforced against them. See Cal. Prob. Code § 21311.

Critically, California law also strictly construes no contest clauses. As the California Supreme Court has held, ambiguities in a no contest clause are resolved against triggering forfeiture. Courts will not read a no contest clause to cover conduct that is not clearly within its terms.

Is a Partition Action Considered a Contest?

Not inherently. Under California law, a co-owner of real property has a statutory right to divide or sell the property. A partition action is simply a legal process used when the co-owners of property—like siblings who inherited a home—can’t agree whether to sell or keep it. It allows the court to divide or sell the property so that each party can receive their fair share.

Importantly, a partition action does not attack the validity of the trust. A beneficiary filing for partition is not alleging fraud, forgery, or undue influence. They are simply asserting their co-ownership interest in property — an interest the trust itself may have granted them.

However, a partition can become a “contest” if:

• The partition directly challenges the validity or enforceability of a trust or will provision; or
• The trust explicitly prohibits co-ownership or mandates a specific use for the property and the partition action would override or challenge those terms

For example, if a trust instrument expressly prohibits co-ownership, filing a partition lawsuit that contradicts that prohibition may be characterized as a contest of the trust’s terms, potentially triggering a no contest clause.

Legal Strategy and Risk Management

It’s important to carefully review:

• The exact wording of the trust’s no contest clause
• Whether the partition action challenges the trust’s validity, administration, or distribution terms
• Whether the co-owners already hold title to the property individually or jointly

If the clause is broad or the trust explicitly restricts co-ownership, consult a partition attorney before filing. With the right legal guidance, many partition actions can proceed without violating a no contest clause.

Talkov Law Partition Attorneys Can Help

At Talkov Law Partition Attorneys, we focus exclusively on partition actions. Our attorneys have handled over 575 partition cases across California. We understand how to navigate the fine line between asserting your ownership rights and protecting your inheritance under a trust.

With twelve full-time partition lawyers, we’re California’s leading partition law firm. Contact us today for a free consultation at (877) PARTITION (727-8484) or online to discuss your options.

The post Does a No Contest Clause in a Trust Prevent a Partition? appeared first on Talkov Law Partition Attorneys.

Among the more creative arguments in partition action cases is the idea that one co-owner should pay the capital gains taxes of the other co-owner.

When co-owned property is sold, especially in a partition action, disputes often arise over who gets what, known as a partition accounting. Usually, these claims about accounting relate to unequal payments, known as offsets. However, some co-owners go a step further and make surprising claims that their co-owner should be liable for detriments suffered by the tax code, such as capital gains resulting from a sale.

While this idea may feel intuitive to some, it has no basis in California law.

Partition Accounting Focuses on Fair Division of Proceeds

In a California partition action, the court’s role is to divide the net proceeds of the sale according to each party’s ownership interests and any allowable adjustments. Code of Civil Procedure Section 872.140 states that the court may “order allowance, accounting, contribution, or other compensatory adjustment among the parties in accordance with the principles of equity.”

Under California law, this may include:

• Reimbursement for mortgage payments
• Contributions to property taxes
• Costs of improvements or repairs
• Offsets for exclusive use or rental value (in some cases)

Courts may also account for equitable adjustments between co-owners related to the property itself. (See Code Civ. Proc., § 872.140)

Scope of a Partition Action Limits Offset Claims to Those Related to the Property

While an accounting in a partition action may feel like it had no boundaries, the law has stated otherwise.

Rather, the scope of a partition action was explained by Demetris v. Demetris (1954) 125 Cal. App. 2d 440, 444, which found that: “In a suit for partition it is a general rule that all equities and conflicting claims existing between the parties and arising out of their relation to the property to be partitioned may be adjusted.”

Capital Gains Taxes Are Not Related to the Property, But Rather are Personal to the Co-Owner

However, courts do not adjust distributions based on a party’s personal tax consequences. Capital gains taxes are imposed by federal and state tax authorities on the individual who realizes the gain, not on the property itself and not on the co-ownership relationship.

Indeed, the amount of the gain relates to the contributions and basis of each co-owner such that they can differ between co-owners. For instance, one co-owner might have inherited their fractional interest, thereby obtaining a step up in capital gains basis, while the other did not obtain that benefit.

Moreover, the tax imposed on that gain depends upon the income of the co-owner, not based upon the property. Indeed, there are thresholds where some co-owners may pay no capital gains.

Even further, the tax is owed to a third party. It is not an incidence of the co-ownership, and would be owed only when a co-owner sells their interest.

Partition is about dividing the property (or proceeds), not equalizing the after-tax outcome for each party.

• Their basis in the property
• Length of ownership
• Applicable exclusions (such as the primary residence exclusion under Internal Revenue Code § 121)
• Their personal income and tax bracket

Two co-owners can walk away from the same sale with very different tax consequences. One may owe significant taxes, while the other owes none at all. That difference does not create a legal obligation for one co-owner to subsidize the other.

Why Co-Owners Try to Shift Capital Gains Taxes

Despite the lack of legal support, this argument tends to surface in emotionally charged disputes.

A co-owner facing a large tax bill may feel that:

• The sale is being “forced” on them
• They are being unfairly burdened compared to the other owner
• The other co-owner should “make them whole”

While these concerns may be understandable from a personal perspective, they do not translate into enforceable legal claims.

Courts consistently separate personal financial consequences from the equitable division of property interests.

Generally, co-owners will only make these arguments when attempting to reach a settlement before a partition action is filed. After the court is involved, they will see that their co-owners have another option to reach a fair resolution of the case: by asking the judge.

Don’t Let a Co-Owner Reduce Your Share

If your co-owner is making unreasonable claims about taxes or trying to reduce your share of the proceeds, Talkov Law Partition Attorneys can help you navigate the process and protect your rights. Call (877) PARTITION (727-8484) or reach out online to speak with a partition attorney today.

The post Co-Owner Can’t Force You to Pay Their Capital Gains Tax in a Partition Sale appeared first on Talkov Law Partition Attorneys.

Co-ownership with a divorcing couples presents a challenge to force the sale of a property when a co-owner wants out due to the high burden of Family Code § 2108. This is where a partition action often becomes the more powerful legal tool.

What Does Family Code Section 2108 Do?

California Family Code Section 2108 provides that:

“At any time during the proceeding, the court has the authority, on application of a party and for good cause, to order the liquidation of community or quasi-community assets so as to avoid unreasonable market or investment risks, given the relative nature, scope, and extent of the community estate.”

This means:

• A sale is not automatic.
• A third party co-owning with the divorcing spouses or a divorcing spouse cannot force a sale simply because they want it sold.
• The court must find good cause, often tied to avoiding unreasonable financial or market risk.

A family court may consider ordering a sale if:

• The property is at risk of foreclosure
• The parties cannot afford mortgage or carrying costs
• The asset is rapidly declining in value
• There is significant financial exposure if the property is retained

Importantly, Section 2108 governs liquidation before judgment in a family law case in California. At the time of final judgment, family courts retain broader authority to divide property, which may include ordering the sale of real estate to effectuate an equal division.

Needless to say, family courts are cautious. They prioritize equitable division over immediate liquidation- a struggle when third parties such as parents of one of the divorcing spouses is on title to the real estate, usually the marital residence.

Why Partition Actions Are Often the Better Solution

Unlike family court proceedings, partition law provides a much more direct and reliable path to selling property that is co-owned by someone other than the divorcing couple.

Under California law, a partition action is a matter of right for co-owners of real property. (Code Civ. Proc., § 872.710.)

This creates a critical distinction:

• In family court, you must prove financial risk to force a sale
• In a partition action, you generally have the right to force a sale, no risk required

This is why many co-owners, including divorcing or formerly married couples, turn to partition actions when they cannot reach an agreement.

Partition shifts the focus from justification to resolution.

When Partition Becomes Necessary in Divorce Situations

Partition actions commonly arise in connection with divorce when:

• A third party co-owner is joined in the family court action where the family court takes no interest in selling the property
• The family court declines to order a sale under the standards of Family Code § 2108
• One party refuses to cooperate with selling the property
• The divorce judgment leaves the property jointly owned
• One party cannot refinance or buy out the other
• Disputes continue long after the divorce is finalized

Third parties who co-own with a divorcing couple would be wise to contact a partition attorney to help end the co-ownership promptly.

When Co-Ownership Continues After Divorce

Even after a divorce is finalized, former spouses sometimes remain co-owners of real property if:

• The property was not sold during the case,
• One party could not refinance or buy out the other, or
• The judgment left ownership unresolved or deferred.

When that happens, disputes over sale, use, or management of the property may arise—and Family Code § 2108 no longer applies. Importantly, once a divorce is complete, Family Code § 2108 no longer applies, but the right to partition remains.

Key Takeaways: Family Code 2108 vs. Partition Actions

• Family Code § 2108 governs when a court may order the sale of property under family court rules, but only to avoid unreasonable market or investment risks, meaning that family courts do not automatically order liquidation of real estate.
• Partition actions offer a separate legal mechanism that may allow a co-owner to force a sale more directly without regard to whether one party wants it or not.

Take Control of Your Property Dispute with a Partition Action

If you are stuck in a dispute over selling property jointly owned with a married couple, understanding the difference between family court limitations and partition rights can make all the difference.

At Talkov Law, our team of twelve partition attorneys handles every aspect of the partition process, from filing the partition lawsuit to forcing the sale and resolving financial claims between co-owners.

If you are dealing with a property dispute during or after a divorce, we can help you take control of the situation. Call (877) PARTITION (727-8484) today to speak with a California partition attorney and explore your options.

The post Family Code § 2108 – Is a Partition Action the Better Option? appeared first on Talkov Law Partition Attorneys.