A Guide to “Necessary” Parties in a Partition Action

July 2024

By Underwood Law Firm

The purpose of this article is to discuss who must be named in a partition lawsuit. It is important to name all the necessary parties so that the Court can properly issue a judgment at the conclusion of the partition action. As partition lawsuits involve rights to property, it is pretty obvious that the owners of the property and the mortgage broker should be joined. But the question becomes more difficult as the interests become less connected, like easement holders or other persons who have liens against the individual owners. As such, this article aims to provide clarity on the process. 

What Does the Law Say?

Under Code of Civil Procedure section 872.510, the plaintiff must join as defendants all persons having or claiming interests in the estate, persons who are actually known to the plaintiff to have such interests, or persons who, from an inspection of the property, appear to have such interests. Sections 872.510 to 872.550 define “interest,” as situations, includes liens, and a “lien” means a mortgage, deed of trust, or other security interest in property whether arising from contract, statute, common law, or equity. According to the Legislative Committee Comment, under Section 872.510, only persons having interests in the estate or estates as to which partition is sought need to be joined. 

Similarly, under Code of Civil Procedure section 872.230, a complaint must include several items but as relevant here: (c) All interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff. (emphasis added.) In other words, Subdivision (c) of 872.230 limits the requirement to only those interests the plaintiff reasonably believes will be materially affected by the partition action. According to the Legislative Committee Comments, the incorporation of a title report should be sufficient to satisfy this requirement as to recorded interests but not as to unrecorded interests known to the plaintiff. 

Under Section 872.540, the requirement that all persons having an interest in the property be named as defendants can be unduly burdensome where the property is subject to an oil or gas lease. Accordingly, unnecessary parties defendant are eliminated. “Where property is subject to a lease, community lease, unit agreement, or other pooling arrangement with respect to oil or gas or both, the plaintiff need not join as defendants persons whose only interest in the property is that of a lessee, royalty-owner, lessor-owner of other real property in the community, unit, or pooled area, or working interest owner, or persons claiming under them, and the judgment shall not affect the interests of such persons not joined as defendants.

Should a leasehold be included in a Partition Action? 

In Bacon v. Wahrhaftig, (1950) 97 Cal. App. 2d 599, the court of appeals held that the defendants whose interests resulted from a series of leases, conveyances, agreements and assignments which were pleaded and properly attached as exhibits to the complaint were necessary and proper. The court reasoned that because the right of a lessee in an oil and gas lease is a profit a prendre, that is an incorporeal hereditament or interest in real property, such interest was required to be put in the plaintiff’s complaint. (Id. at 606.) Thus, the court found that the defendants were all proper parties to the action because they had an interest in the partition of the oil land. (Id. at 604.)

Should a lienholder be included in a Partition Action?

In Stewart v. Abernathy (1944) 62 Cal.App.2d 419, 433, the Court addressed whether a lien holder should have been included in the partition complaint. Although the Plaintiff had knowledge of a lien, he failed to set it forth in his complaint. At trial, there was a dispute about whether the failure to list it was an error. The trial court analyzed the partition law, and found that the section was mandatory. Even though there was a dispute about the date of maturity of the lien, the court reaffirmed that it should have been included. As a result, a partition complaint should list known liens of record. 

What is an Example? 

As an example, Shawn and Julie are an unmarried couple who decide to buy a house together. After Shawn becomes abusive, Julie flees the house and seeks to partition the property. When Shawn and Julie bought the house, they obtained a mortgage from a bank to purchase it. Prior to litigation, Julie’s lawyer conducts a title search, and discovers that the neighbor has an easement on the property for a driveway. As a result, when drafting the complaint, Julie’s lawyer makes sure to name the mortgage company as well as the neighbor in order to ensure that all necessary parties are part of the lawsuit, and there will be no problems obtaining a judgment at the end of the suit so that Julie can finally be free of Shawn.  

For more information on this or other Real Estate Law topics, visit the website for the Underwood Law Firm.