The Difference Between Partition by Sale and Partition in Kind According to California Law
You and your co-owner no longer see eye to eye. We get it, it happens.
Next, the property you bought together is now the reason you can’t sleep. You want to sell it, but your partner doesn’t. What now?
In California, the law gives you a way out. It’s called “partition.” But here’s the catch. There’s more than one kind of partition. And not every option is suitable for every situation.
This blog will break down ways for you. The ways that actually work.
What the California Partition Law Says
Partition is a legal right. It lets a co-owner ask the court to split or sell jointly owned property. This is covered under California Code of Civil Procedure 872.010.
The court doesn’t care how long you’ve owned the place. Or why you’re arguing. If you co-own it, you have the right to ask for a partition.
But just because you can ask doesn’t mean the court will grant it exactly how you want. Therefore, you need to understand the various types of partitions.
Partition by Sale Is Not Always the Default
Many people think the court always sells the property and splits the money. It’s not true.
Yes, partition by sale is a common practice. However, the court first determines whether the property can be fairly divided. If it can’t, or if dividing it would cause “great prejudice” to any owner, then the sale becomes the likely path.
This “great prejudice” test comes from CCP 872.820. It essentially asks: Will someone lose out significantly if we physically divide this property?
If the answer is yes, then the court orders a sale. But that decision varies from case to case.
Partition in Kind Has Higher Legal Barriers
Partition in kind means the property gets physically divided. One part goes to you, one to your co-owner. Sounds fair on paper. But it rarely happens.
Most lots, homes, or buildings can’t be split without harming their value. A single-family home can’t be cut in two. Even duplexes often have shared systems that make division complex.
You must show the court that the split can be done fairly and that both parties will get equal value. That usually involves expert appraisals, land surveys, and detailed proposals.
The court won’t do that for you. You’ll need a real estate attorney California to guide this process properly.
Court’s Approach to Equity in Partition Decisions
Courts strive to be fair, but a 50/50 split is sometimes not possible.
Let’s say one co-owner paid more for the property. Or made major improvements. Or covered all the mortgage payments while the other didn’t contribute.
The court examines these things closely. And while the split might begin at 50/50, adjustments are made along the way, including reimbursing one party for repairs, taxes, or mortgage payments.
How Co-Owner Disputes Affect the Court’s Choice
Sometimes it’s not the property that’s the problem. It’s the people.
When co-owners can’t communicate or cooperate, the court is less likely to approve partition in kind because co-managing divided property requires ongoing coordination. If that’s not possible, a sale becomes the cleaner fix.
So if you’re locked in a feud, a partition by sale becomes more likely.
Practical Delays and Legal Costs in Each Option
Partition cases don’t wrap up overnight. Both types take months.
But partition in kind tends to be slower and more expensive, for it requires more paperwork, expert input, and sometimes hearings to argue over the proposed split.
A sale might be simpler if the market is good. The property is listed, sold, and the proceeds are split, usually with the help of a court-appointed referee.
Also, don’t forget to account for legal fees. If both sides drag out negotiations, the costs escalate.
Impact on Property Value and Tax Implications
A court-ordered sale might not get the best price. Since people are already aware, it’s a forced sale. It brings the value down.
Plus, there are taxes. If the home has increased in value, expect to pay capital gains tax. And if someone inherits a share, property tax reassessment might come into play.
Net proceeds can shrink fast.
Most of the time, owners walk away with much less than they expected. Talking to a real estate attorney in California early can help you understand what you’ll get after taxes, fees, and deductions.
Conclusion
During partition, your goal is not to win or defeat others; it should be getting unstuck.
Both partition by sale and partition in kind have their place. Which one fits your situation depends on the property, the people, and the history.
Don’t guess your way through it. A qualified real estate attorney will help you figure out your options before the court decides it for you.