Updated on September 7, 2023
In our previous blog posts, we discussed the different types of partition available. But what happens after the parties complete the court ordered sale in a partition by sale cause of action? In today’s blog post, we discuss the steps to confirm a partition by sale of the property.
In a judicial partition action, after the court finds that the plaintiff is entitled to partition, it must make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and the manner of partition. (Code Civ. Proc. § 872.720(a).) Once the court makes the interlocutory judgment, the parties can proceed with the sale. However, because there are additional steps following the sale of the subject property, an interlocutory judgment in partition is only a determination of the respective interest of the parties, preliminary to final judgment. (Harrington v. Goldsmith (1902) 136 Cal. 168.)
Upon making a sale of property in a partition action, the referee must report the sale to the court. (Code Civ. Proc. § 873.710(a).) The referee’s report must contain, in addition to such other information as ma be appropriate, all of the following information:
(1) a description of the property sold to each purchaser;
(2) the name of the purchaser;
(3) the sale price;
(4) the terms and conditions of the sale and the security, if any, taken;
(5) any amounts payable to lienholders;
(6) a statement as to contractual or other arrangements or conditions as to agents’ commissions;
(7) any determination and recommendation as to opening and closing public and private ways, roads, streets, and easements; and
(8) other material facts relevant to the sale and the confirmation proceeding. (Code Civ. Proc. § 873.710(b)(1) to (8).)
After the referee’s report is made, the court must confirm the sale before it can be final. (Hastings v. Cunningham (1868) 35 Cal. 549.) Until confirmation, the bidder has no interest in the property because in judicial partition, the partition sale is subject to the control of the court. (Dunn v. Dunn (1902) 137 Cal. 51.)
To confirm the sale, the purchaser, the referee, or any party to the partition action must file a motion with the court to confirm or set aside the sale. (Civ. Proc. Code § 873.720(a).) The moving party must give not less than 10 days’ notice of motion to: (1) the purchaser if the purchaser is not the moving party; and (2) all other parties who have appeared in the action. (Code Civ. Proc. 873.720(b)(1) to (2).) At the hearing, in determining whether to confirm the sale, the court must examine the referee’s report and witnesses in relation to the report. (Code Civ. Proc. 873.730(a).) Upon confirmation of the sale, the court orders the referee or relevant party to execute a conveyance or other instrument of transfer to collect the proceeds, take security and perform other acts required to consummate the sale. (Code Civ. Proc. § 873.750(a).) This order may also direct the referee concerning the distribution, deposit, or security of sale deposits and sale proceeds. (Code Civ. Proc. § 873.750(b.))
Schorr Law has experience with judicial partition actions and all the steps required to successfully consummate a partition sale. To see if you qualify for a free consultation with one of our Los Angeles Partition Attorneys please call (310) 954-1877 or email us at [email protected]. You can also use our handy Contact Form to send us a message.