Who Pays for a Partition Action in California?

Short answer: In a California partition action, the costs of partition — including the partition referee’s fees, the expenses of selling the property, and attorney’s fees incurred for the common benefit of all owners — are generally paid out of the sale proceeds before anything is distributed. The court then apportions those costs among the co-owners in proportion to their ownership interests, and it can shift more of the cost to an owner whose conduct drove it up.

Below are the questions co-owners and their attorneys ask most often about partition costs. For the full statutory framework, see our guide to California partition referee statutes.

Who pays for a partition action in California?

All co-owners share the costs of partition, in proportion to their ownership interests. Under California Code of Civil Procedure § 874.040, the court apportions the costs of partition among the parties in proportion to their interests, or in another way the court finds equitable. In practice, most of these costs come out of the sale proceeds: under CCP § 873.820, the expenses of sale (including the referee’s fees) are paid first, then other costs of partition, then liens, and the balance is distributed to the owners according to their percentage interests.

What counts as a “cost of partition”?

Under CCP § 874.010, the costs of partition include reasonable attorney’s fees incurred or paid for the common benefit of all owners, and the compensation and expenses of the partition referee, along with other costs the court allows. Typical examples are the referee’s fees, the real estate broker’s commission, title and escrow charges, and the legal work needed to move the sale forward for everyone’s benefit.

Does each co-owner pay their own attorney?

Generally, yes, for fees spent fighting over contested issues. Attorney’s fees are shared as a cost of partition only when the work benefited all owners — for example, work that moved the property toward a sale. Fees an owner spends litigating a dispute in their own interest are usually borne by that owner. How a particular fee is classified is decided by the court, so co-owners should get advice from their own counsel.

Are costs paid up front or out of the sale?

Mostly out of the sale. The party filing the partition action pays its own filing costs to start the case. Once a partition referee is appointed, the referee is paid as provided in the court’s order. When the property produces no income, the referee may not be paid until the sale closes, and the referee’s fees and sale expenses are then paid from the proceeds before distribution.

Can the court make one co-owner pay more?

Yes. The court can depart from a straight pro-rata split when that is equitable. A common example is an owner who lives in the property and refuses to leave. If the referee has to bring an ejectment action — which typically takes 60 to 120 days — the legal fees and carrying costs it causes can be surcharged against that owner’s share of the proceeds. The same applies to costs caused by frivolous claims filed to delay removal, such as an unfounded Claim of Right to Possession (sometimes called an Arrieta claim). The other owners should not bear the cost of one party’s non-compliance.

Is a partition action expensive?

It depends mostly on how much the owners fight. When co-owners cooperate with the referee and comply with court orders, costs stay contained and come out of the sale proceeds. Costs rise when an owner refuses to vacate, contests every step, or forces the referee back to court for additional orders. A well-drafted order appointing the referee — covering the sale procedure, the confirmation process, and the referee’s authority — avoids return trips to court that add cost for everyone.

How long does a partition action take in California?

Once a referee is appointed, selling a property out of partition in California typically takes about three months to a year, depending on whether an occupant must be removed, how long marketing takes, and whether the sale is contested. After the court confirms the sale, there is a 60-day appeal period before escrow can close, unless it is waived. Our partition referee process guide for attorneys walks through each stage.

Talk to a California Partition Referee

FedReceiver, Inc. serves as court-appointed partition referee throughout California. If you are evaluating a partition action and want to understand how costs are likely to be handled in your matter, contact FedReceiver to discuss it.

This article is provided for general informational purposes only and does not constitute legal advice. Statutory references are to the California Code of Civil Procedure and are subject to amendment. Consult qualified counsel about any specific partition matter.