Michael D. Kolodzi Attorney at Law
Michael D. Kolodzi Attorney at Law / Supreme Sports
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Michael D. Kolodzi


Code of Civil Procedure - CCP
PART 2. OF CIVIL ACTIONS [307 - 1062.20] (Part 2 enacted 1872.)
TITLE 10. ACTIONS IN PARTICULAR CASES [725a - 871.7] (Title 10 enacted 1872.)
CHAPTER 4.5. Special Actions and Proceedings to Clear Title [770.010 - 772.060] (Chapter 4.5 added by Stats. 1980, Ch. 44, Sec. 16.)

ARTICLE 1. Identity of Person in Chain of Title [770.010 - 770.080] (Article 1 added by Stats. 1980, Ch. 44, Sec. 16.)

770.010. As used in this article:

(a) “Acquired” means received or taken by conveyance, judgment, decree, or otherwise.

(b) “Property” means any right, title, or interest in or lien upon real property or part thereof.

(c) “Subsequent owner” means the person to whom property is transferred whether as owner, part owner, or otherwise, or the successors in interest of the person, and includes a distributee of the estate of a decedent.

(d) “Transfer” means voluntary or involuntary transfer and includes a conveyance, reconveyance, satisfaction of a lien, or divestment by judgment, decree, or otherwise. The probate of the estate of a decedent and entry of the decree of distribution is a transfer within the meaning of this subdivision.

(Added by Stats. 1980, Ch. 44, Sec. 16.)

770.020. If property is acquired or stands of record in the name of a person who heretofore or hereafter transfers the property under a name other than or different from the name in which the property is acquired or stands of record, a proceeding is authorized to adjudicate and determine the identity of the person in whose name the property is acquired or stands of record and the person who transfers the property.

(Added by Stats. 1980, Ch. 44, Sec. 16.)

770.030. The proceeding shall be brought in the superior court of the county in which the property or any part thereof is situated.

(Added by Stats. 1980, Ch. 44, Sec. 16.)

770.040. (a) The proceeding may be brought by a subsequent owner of the property by filing a petition with the court.

(b) At any time before the date fixed for the hearing of the petition, any person interested in the property may answer the petition and deny any of the matters contained therein.

(Added by Stats. 1980, Ch. 44, Sec. 16.)

770.050. (a) The petition shall be verified in the manner provided for verification of a complaint.

(b) The petition may be substantially entitled, “In the matter of the determination of the identity of ____” (naming all the persons sought to be identified), and may set forth:

(1) A statement of petitioner’s interest in the property as subsequent owner.

(2) A particular description of the property.

(3) The name or names of the person or persons sought to be identified, setting out the name and a reference to the record of the transaction under which the property was acquired or stands of record and the name and a reference to the record of the transaction under which the property was transferred or stands of record, that the names are the names of the same person, and that the transfers affect the petitioner’s title to the real property.

(4) A prayer that the identity of such persons be established.

(c) As many persons sought to be identified as appear of record in the chain of title to the property may be joined in one petition or proceeding.

(Added by Stats. 1980, Ch. 44, Sec. 16.)

770.060. (a) Upon the filing of the petition, the clerk shall set the petition for hearing by the court.

(b) The petitioner shall give notice of the hearing by causing notices of the time and place of hearing to be posted at the courthouse of the county where the proceeding is pending and in a conspicuous place on the real property described in the petition, at least 10 days before the hearing.

(c) The special notice shall be substantially in the following form:

(Title of court and cause)

Notice is hereby given that ____ has filed a petition herein claiming to be the owner (or distributee) of the following described lands ____ (description) and praying that the identity of the following-named persons, in former conveyances (or judgments or decrees) to said lands or in decrees of distribution of said lands in probate be determined, to wit: ________ (names as J. Doe and John Doe); and that the time and place of hearing said petition has been set for ____ the ____ day of ____, 19__, at the hour of ____, __m. of said day at the courtroom of said court in the City of ____, County of ____, State of California.

_____ Clerk

(Added by Stats. 1980, Ch. 44, Sec. 16.)

770.070. (a) At the time fixed for the hearing or such time thereafter as may be fixed by the court, the court shall hear the proofs offered by the petitioner and by any persons answering the petition, and shall make and enter a decree determining the identity of the person or persons set out in the petition in accordance with the proofs.

(b) An appeal may be taken by any party aggrieved.

(Added by Stats. 1980, Ch. 44, Sec. 16.)

770.080. (a) After the decree has become final it constitutes prima facie evidence of the matters thereby determined and it is presumed that the identity of the person or persons described in the decree is such as is stated in the decree.

(b) A certified copy of the decree shall be recorded in the office of the county recorder of every county in which any part of the property is situated.

(Added by Stats. 1980, Ch. 44, Sec. 16.)

ARTICLE 2. Land Dedicated for Public Improvement [771.010 - 771.020] (Article 2 added by Stats. 1980, Ch. 44, Sec. 16.)

771.010. If a proposal is heretofore or hereafter made to dedicate real property for public improvement, there is a conclusive presumption that the proposed dedication was not accepted if all of the following conditions are satisfied:

(a) The proposal was made by filing a map only.

(b) No acceptance of the dedication was made and recorded within 25 years after the map was filed.

(c) The real property was not used for the purpose for which the dedication was proposed within 25 years after the map was filed.

(d) The real property was sold to a third person after the map was filed and used as if free of the dedication.

(Added by Stats. 1980, Ch. 44, Sec. 16.)

771.020. (a) An action is authorized to clear title to real property of a proposal to dedicate the property for public improvement if there is a conclusive presumption pursuant to Section 771.010 that the proposed dedication was not accepted.

(b) The action shall be pursuant to Chapter 4 (commencing with Section 760.010) and shall have the following features:

(1) The public entity to which the dedication was proposed shall be named as defendant.

(2) The judgment in the action shall clear the title of the proposed dedication and remove the cloud created by the proposed dedication.

(Added by Stats. 1980, Ch. 44, Sec. 16.)

ARTICLE 3. Right of Entry or Occupation of Surface Lands Under Oil or Gas Lease [772.010 - 772.060] (Article 3 added by Stats. 1980, Ch. 44, Sec. 16.)

772.010. This article applies only to lands within a city in any county with a population exceeding 4,000,000, or with a population of more than 700,000 and less than 710,000 as determined by the 1960 Federal Decennial Census.

(Added by Stats. 1980, Ch. 44, Sec. 16.)

772.020. As used in this article:

(a) “Surface zone” means the zone which lies above a plane which is 500 feet below the surface of the land.

(b) “Subject land” means that area occupied by the particular described surface and surface zone for which plaintiff seeks to terminate the leasehold right of entry and occupation.

(c) “Lease facilities” means storage tanks, wash tanks, separators, heaters, and other facilities reasonably necessary for the production of oil or gas, including secondary recovery operations.

(Added by Stats. 1980, Ch. 44, Sec. 16.)

772.030. (a) If a mining rights lease, including a community lease, exists for the production of oil, gas, or other hydrocarbons, and a right of entry or occupation provided by the lease encumbers all or part of the surface or surface zone of the leasehold lands, any person who owns a fee interest in the surface of the leasehold lands may bring an action in the superior court to terminate the right of entry or occupation as to all or some described portion of the surface and surface zone of the leasehold lands in which the person owns an interest.

(b) No judgment rendered pursuant to this article shall change or affect the terms or operation of any valid unit agreement or valid operating agreement which comes within the provisions of Section 3301 or 3321 of the Public Resources Code.

(Added by Stats. 1980, Ch. 44, Sec. 16.)

772.040. The court may render a judgment terminating the lessee’s right of entry or occupation of the surface and surface zone, subject to such conditions as the court deems fair and equitable, if the evidence shows each of the following:

(a) The document that created the leasehold interest was originally executed more than 20 years prior to filing the action under this article regardless of any amendments to the document. However, if any amendment was entered into expressly for the purpose of waiving, limiting, or rearranging surface rights of entry and occupation by the lessee, the 20-year period shall be computed as if the document were originally executed on the date of execution of the amendment.

(b) The subject land is not presently occupied by any of the following:

(1) A producing oil or gas well or well bore.

(2) A well or well bore being utilized for injection of water, gas, or other substance into geologic substrata as an aid to oil or gas production or to ameliorating subsidence.

(3) A well or well bore being utilized for the disposal injection of waste oil well brine and byproducts.

(4) A well or well bore being utilized for the production of water for use in oil field injection, waterflood, and pressure maintenance programs.

(c) Termination of the right of entry or occupation within the subject land in the manner requested by the plaintiff, or subject to such conditions as the court may impose pursuant to this section, will not significantly interfere with the right of the lessee, under the lease, to continue to conduct operations for the continued production of oil from leasehold strata beneath the surface zone in a practical and economic manner, utilizing such production techniques as will be appropriate to the leasehold area, consistent with good oilfield practice, and to gather, transport, and market the oil.

(Added by Stats. 1980, Ch. 44, Sec. 16.)

772.050. (a) The court may qualify the judgment terminating the surface and surface zone right of entry or occupation so as to provide for limited surface and surface zone easements that the lessee may continue to enjoy within the subject land.

(b) A judgment may be conditioned upon the relocation of pipelines, roadways, equipment, or lease facilities in such manner as will most effectively free the subject land for surface use while safeguarding continued oil and gas operations in a practical and economic manner. Any such condition of the judgment shall require the plaintiff to pay the costs of the relocation. However, the plaintiff shall be entitled to a setoff against the costs to the extent of any benefit to the lessee resulting from the installation of new equipment or material. The plaintiff has the burden of proving any benefit accruing to the lessee.

(Added by Stats. 1980, Ch. 44, Sec. 16.)

772.060. It is against public policy for any oil or gas lease, at its inception, to provide for the waiver of any rights created by this article, or for such rights to be waived by amendment to any oil or gas lease within 20 years of the date of its execution by a plaintiff or the plaintiff’s predecessor in interest.

(Added by Stats. 1980, Ch. 44, Sec. 16.)

Code of Civil Procedure - CCP
PART 2. OF CIVIL ACTIONS [307 - 1062.20] (Part 2 enacted 1872.)
TITLE 10.5. PARTITION OF REAL AND PERSONAL PROPERTY [872.010 - 874.240] (Title 10.5 added by Stats. 1976, Ch. 73.)
CHAPTER 2. Commencement of Action [872.210 - 872.550] (Chapter 2 added by Stats. 1976, Ch. 73.)

ARTICLE 1. Complaint and Lis Pendens [872.210 - 872.250] (Article 1 added by Stats. 1976, Ch. 73.)

872.210. (a) A partition action may be commenced and maintained by any of the following persons:

(1) A coowner of personal property.

(2) An owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates.

(b) Notwithstanding subdivision (a), an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under this title.

(Added by Stats. 1976, Ch. 73.)

872.220. If it is necessary to have a title report:

(a) The plaintiff may, prior to commencing the action, procure a title report and shall in the complaint indicate this has been done and designate a place where it will be kept for inspection, use, and copying by the parties.

(b) The court may, upon application of a party, authorize the party to procure a title report and shall designate a place where it shall be kept for inspection, use, and copying by the parties.

(Added by Stats. 1976, Ch. 73.)

872.230. The complaint shall set forth:

(a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.

(b) All interests the plaintiff has or claims in the property.

(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.

(d) The estate as to which partition is sought and a prayer for partition of the interests therein.

(e) Where the plaintiff seeks sale of the property, an allegation of the facts justifying such relief in ordinary and concise language.

(Added by Stats. 1976, Ch. 73.)

872.240. Real and personal property may be partitioned in one action.

(Added by Stats. 1976, Ch. 73.)

872.250. (a) Immediately upon filing the complaint, the plaintiff shall record a notice of the pendency of the action in the office of the county recorder of each county in which any real property described in the complaint is located.

(b) If, thereafter, partition of other real property is sought in the same action, the plaintiff or other person seeking such relief shall immediately record a supplemental notice.

(c) If the notice is not recorded, the court, upon its own motion or upon the motion of any party at any time, shall order the plaintiff or person seeking partition of the property, or another party on behalf of the plaintiff or other person, to record the notice and shall stay the action until the notice is recorded. The expense of recordation shall be allowed to the party incurring it.

(d) From the time of filing the notice for record, all persons shall be deemed to have notice of the pendency of the action as to the property described in the notice.

(Added by Stats. 1976, Ch. 73.)

ARTICLE 2. Summons [872.310 - 872.330] (Article 2 added by Stats. 1976, Ch. 73.)

872.310. (a) The form, content, and manner of service of summons shall be as in civil actions generally.

(b) Service on persons named as parties pursuant to Sections 872.530(b) and 872.550, and on other persons named as unknown defendants, shall be by publication pursuant to Section 415.50 and the provisions of this article.

(Added by Stats. 1976, Ch. 73.)

872.320. Where the court orders service by publication, such order shall be subject to the following conditions:

(a) The plaintiff shall post, not later than 10 days after the date the order is made, a copy of the summons and complaint on the real property that is the subject of the action.

(b) The plaintiff shall record, if not already recorded, a notice of the pendency of the action.

(c) The publication shall describe the property that is the subject of the action. In addition to particularly describing the property, the publication shall describe the property by giving its street address, if any, or other common designation, if any; but, if a legal description of the property is given, the validity of the publication shall not be affected by the fact that the street address or other common designation recited is erroneous or that the street address or other common designation is omitted.

(Added by Stats. 1976, Ch. 73.)

872.330. (a) Where the court orders service by publication, the publication may:

(1) Name only the defendants to be served thereby.

(2) Describe only the property in which the defendants to be served thereby have or claim interests.

(b) Judgment based on failure to appear and answer following service under this section shall be conclusive against the defendants named in respect only to property described in the publication.

(Added by Stats. 1976, Ch. 73.)

ARTICLE 3. Answer [872.410 - 872.430] (Article 3 added by Stats. 1976, Ch. 73.)

872.410. The answer shall set forth:

(a) Any interest the defendant has or claims in the property.

(b) Any facts tending to controvert such material allegations of the complaint as the defendant does not wish to be taken as true.

(c) Where the defendant seeks sale of the property, an allegation of the facts justifying such relief in ordinary and concise language.

(Added by Stats. 1976, Ch. 73.)

872.420. Where the defendant has or claims a lien on the property, the answer shall set forth the date and character of the lien and the amount remaining due thereon.

(Added by Stats. 1976, Ch. 73.)

872.430. The answer may set forth any claim the defendant has for contribution or other compensatory adjustment.

(Added by Stats. 1976, Ch. 73.)

ARTICLE 4. Parties [872.510 - 872.550] (Article 4 added by Stats. 1976, Ch. 73.)

872.510. The plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partition is sought.

(Added by Stats. 1976, Ch. 73.)

872.520.
(a) If the name of a person described in Section 872.510 is not known to the plaintiff, the plaintiff shall so state in the complaint and shall name as parties all persons unknown in the manner provided in Section 872.550.

(b) If the ownership or the share or quantity of the interest of a person described in Section 872.510 is unknown, uncertain, or contingent, the plaintiff shall so state in the complaint. If the lack of knowledge, uncertainty, or contingency is caused by a transfer to an unborn or unascertained person or class member, or by a transfer in the form of a contingent remainder, vested remainder subject to defeasance, executory interest, or similar disposition, the plaintiff shall also state in the complaint, so far as is known to the plaintiff, the name, age, and legal disability (if any) of the person in being who would be entitled to ownership of the interest had the contingency upon which the right of such person depends occurred prior to the commencement of the action.

(c) The court shall upon its own motion or upon motion of any party make such orders for joinder of additional parties and for appointment of guardians ad litem pursuant to Sections 372, 373, and 373.5 as are necessary or proper.

(Added by Stats. 1976, Ch. 73.)

872.530. (a) If a person described in Section 872.510 is dead and the plaintiff knows of a personal representative, the plaintiff shall join such personal representative as a defendant.

(b) If a person described in Section 872.510 is dead, or is believed by the plaintiff to be dead, and the plaintiff knows of no personal representative:

(1) The plaintiff shall state these facts in an affidavit filed with the complaint.

(2) Where it is stated in the affidavit that such person is dead, the plaintiff may join as defendants “the testate and intestate successors of ____ (naming such deceased person), deceased, and all persons claiming by, through, or under said decedent,” naming them in that manner.

(3) Where it is stated in the affidavit that such person is believed to be dead, the plaintiff may join such person as a defendant, and he may also join “the testate and intestate successors of ____ (naming such person) believed to be deceased, and all persons claiming by, through, or under such person,” naming them in that manner.

(Added by Stats. 1976, Ch. 73.)

872.540. 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.

(Added by Stats. 1976, Ch. 73.)

872.550. Where partition is sought as to all interests in the property, the plaintiff may join as defendants “all persons unknown claiming any interest in the property,” naming them in that manner.

(Added by Stats. 1976, Ch. 73.)

ARTICLE 1. Determination of Interests of Parties [872.610 - 872.640] (Article 1 added by Stats. 1976, Ch. 73.)

872.610. The interests of the parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the action.

(Added by Stats. 1976, Ch. 73.)

872.620. To the extent necessary to grant the relief sought or other appropriate relief, the court shall upon adequate proof ascertain the state of the title to the property.

(Added by Stats. 1976, Ch. 73.)

872.630. (a) To the extent necessary to grant the relief sought or other appropriate relief, the court shall determine the status and priority of all liens upon the property.

(b) The court may appoint a referee to ascertain the facts necessary for the determination required by this section. Upon application of the referee or a lienholder, the court shall direct the issuance of process to compel attendance of witnesses, the production of books, documents, or things, and the filing of verified claims. The report of the referee thereon shall be made in writing to the court and shall be confirmed, modified, or set aside and a new reference ordered, as the justice of the case may require.

(Added by Stats. 1976, Ch. 73.)

872.640. Where two or more parties are unknown, the court may consider their interests together in the action and not as between each other.

(Added by Stats. 1976, Ch. 73.)

ARTICLE 2. Determination of Right to Partition [872.710 - 872.730] ( Article 2 added by Stats. 1976, Ch. 73. )

872.710. (a) At the trial, the court shall determine whether the plaintiff has the right to partition.

(b) Except as provided in Section 872.730, partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.

(c) Partition as to successive estates in the property shall be allowed if it is in the best interest of all the parties. The court shall consider whether the possessory interest has become unduly burdensome by reason of taxes or other charges, expense of ordinary or extraordinary repairs, character of the property and change in the character of the property since creation of the estates, circumstances under which the estates were created and change in the circumstances since creation of the estates, and all other factors that would be considered by a court of equity having in mind the intent of the creator of the successive estates and the interests and needs of the successive owners.

(Added by Stats. 1976, Ch. 73.)

872.720. (a) If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.

(b) If the court determines that it is impracticable or highly inconvenient to make a single interlocutory judgment that determines, in the first instance, the interests of all the parties in the property, the court may first ascertain the interests of the original concurrent or successive owners and thereupon make an interlocutory judgment as if such persons were the sole parties in interest and the only parties to the action. Thereafter, the court may proceed in like manner as between the original concurrent or successive owners and the parties claiming under them or may allow the interests to remain without further partition if the parties so desire.

(Added by Stats. 1976, Ch. 73.)

872.730. To the extent that the court determines that the provisions of this title are a suitable remedy, such provisions may be applied in a proceeding for partnership accounting and dissolution, or in an action for partition of partnership property, where the rights of unsecured creditors of the partnership will not be prejudiced.

(Added by Stats. 1976, Ch. 73.)

ARTICLE 3. Determination of Manner of Partition [872.810 - 872.840] ( Article 3 added by Stats. 1976, Ch. 73. )

872.810. The court shall order that the property be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment.

(Added by Stats. 1976, Ch. 73.)

872.820. Notwithstanding Section 872.810, the court shall order that the property be sold and the proceeds be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment in the following situations:

(a) The parties agree to such relief, by their pleadings or otherwise.

(b) The court determines that, under the circumstances, sale and division of the proceeds would be more equitable than division of the property. For the purpose of making the determination, the court may appoint a referee and take into account his report.

(Added by Stats. 1976, Ch. 73.)

872.830. If, in making a determination whether sale would be more equitable than division of the property, the court finds that sale and division of proceeds for part of the property would be more equitable than division of the whole property, the court may order that such part be sold and the remainder divided.

(Added by Stats. 1976, Ch. 73.)

872.840. (a) Where the property or an interest therein is subject to an express trust, the court may, in its discretion, order that the property be sold.

(b) Upon division or sale of such property, the property or proceeds of sale allotted to the trustee of the express trust shall be held by him upon the trust therein stated, and no further action by the court pursuant to Section 873.840 is required.

(Added by Stats. 1976, Ch. 73.)
Code of Civil Procedure - CCP
PART 2. OF CIVIL ACTIONS [307 - 1062.20] (Part 2 enacted 1872.)
TITLE 10.5. PARTITION OF REAL AND PERSONAL PROPERTY [872.010 - 874.240] (Title 10.5 added by Stats. 1976, Ch. 73.)

CHAPTER 5. Division of the Property [873.210 - 873.290] (Chapter 5 added by Stats. 1976, Ch. 73.)

873.210. The referee appointed by the court to make a division of the property shall divide the property and allot the several portions to the parties, quality and quantity relatively considered, according to their interests in the property as determined in the interlocutory judgment.

(Added by Stats. 1976, Ch. 73.)

873.220. As far as practical, and to the extent it can be done without material injury to the rights of the other parties, the property shall be so divided as to allot to a party any portion that embraces improvements made by that party or that party’s predecessor in interest. In such division and allotment, the value of such improvements shall be excluded.

(Added by Stats. 1976, Ch. 73.)

873.230. Where prior to the commencement of the action a party has executed a deed purporting to convey to a purchaser a portion of the property to be divided, to the extent it can be done without material injury to the rights of the other parties, the property shall be so divided as to allot that portion to the purchaser, the purchaser’s heirs or assigns, or such other action taken as to make the deed effectual as a conveyance of that portion of the property.

(Added by Stats. 1976, Ch. 73.)

873.240. Where real property consists of more than one distinct lot or parcel, the property shall be divided by such lots or parcels without other internal division to the extent that it can be done without material injury to the rights of the parties.

(Added by Stats. 1976, Ch. 73.)

873.250. (a) Where division cannot be made equally among the parties according to their interests without prejudice to the rights of some, compensation may be required to be made by one party to another to correct the inequality.

(b) No compensation shall be required to be made to others by unknown owners or by minors unless it appears that a minor has personal property sufficient for that purpose and the minor’s interest will be promoted thereby.

(Added by Stats. 1976, Ch. 73.)

873.260. Where a lien is on an undivided interest of a party, the lien shall, upon division of the property, become a charge only on the share allotted to that party.

(Added by Stats. 1976, Ch. 73.)

873.270. Where the court has determined the combined interests of two or more unknown parties, the entire portion of the property allocated to such parties shall remain undivided.

(Added by Stats. 1976, Ch. 73.)

873.280. (a) The referee shall file with the court a report of the referee’s proceedings and give written notice of filing to each party who has appeared in the action.

(b) The report shall include all of the following:

(1) A specification of the manner in which the referee has executed the referee’s trust.

(2) A description of the property divided and of the share allotted to each party, along with any recommendation as to owelty.

(3) Any recommendation as to opening and closing public and private ways, roads, streets, and easements.

(Added by Stats. 1976, Ch. 73.)

873.290. (a) Any party, upon notice to the other parties who have appeared, may move the court to confirm, modify, or set aside the report.

(b) At the hearing, the court may either confirm the report as filed or as the court may modify and enter judgment of partition accordingly or set aside the report and order preparation of a new report and, if necessary, appoint a new referee for this purpose.

(c) The division is effective and title vests in accordance therewith upon entry of judgment of partition.

(Added by Stats. 1976, Ch. 73.)

Code of Civil Procedure - CCP
PART 2. OF CIVIL ACTIONS [307 - 1062.20] (Part 2 enacted 1872.)
TITLE 10.5. PARTITION OF REAL AND PERSONAL PROPERTY [872.010 - 874.240] (Title 10.5 added by Stats. 1976, Ch. 73.)
CHAPTER 6. Sale of the Property [873.510 - 873.850] (Chapter 6 added by Stats. 1976, Ch. 73.)

ARTICLE 1. Manner of Sale [873.510 - 873.530] (Article 1 added by Stats. 1976, Ch. 73.)

873.510. The referee appointed by the court to make a sale of the property shall sell the property in the manner and following the procedures provided in this chapter.

(Added by Stats. 1976, Ch. 73.)

873.520. The property shall be sold at public auction or private sale as the court determines will be more beneficial to the parties. For the purpose of making this determination, the court may refer the matter to the referee and take into account the referee’s report.

(Added by Stats. 1976, Ch. 73.)

873.530. Part of the property may be sold at public auction and part at private sale if it appears that to do so will be more beneficial to the parties.

(Added by Stats. 1976, Ch. 73.)

ARTICLE 2. Sales Procedures [873.600 - 873.690] (Article 2 added by Stats. 1976, Ch. 73.)

873.600. Notwithstanding any other provision of this title, the court shall order sale by such methods and upon such terms as are expressly agreed to in writing by all the parties to the action.

(Added by Stats. 1976, Ch. 73.)

873.610. (a) The court may, at the time of trial or thereafter, prescribe such manner, terms, and conditions of sale not inconsistent with the provisions of this chapter as it deems proper for the particular property or sale.

(b) The court may refer the manner, terms, and conditions of sale to the referee for recommendation but shall not approve the referee’s report except following a hearing upon noticed motion.

(Added by Stats. 1976, Ch. 73.)

873.620. (a) Unless the interests and rights of the parties will be materially prejudiced thereby, the court shall order that distinct lots or parcels of real property be sold separately.

(b) The court may order that the real and personal property or any portion thereof be sold as a unit.

(Added by Stats. 1976, Ch. 73.)

873.630. The court may:

(a) Direct a sale on credit for the property or any part thereof.

(b) Prescribe such terms of credit as may be appropriate.

(c) Approve or prescribe the terms of security to be taken upon the sale, including the manner in which title to the security is to be taken, whether in a single instrument or several instruments, according to the interests of the parties.

(Added by Stats. 1976, Ch. 73.)

873.640. (a) Notice of the sale of real or personal property shall be given in the manner required for notice of sale of like property upon execution. Such notice shall also be given to every party who has appeared in the action and to such other interested persons as may have in writing requested the referee for special notice.

(b) Where real and personal property are to be sold as a unit, notice of the sale may be in the manner required for notice of sale of real property alone.

(c) The court may order such additional notice as it deems proper.

(d) Where the court orders a new sale of property pursuant to Section 873.730 or Section 873.740, notice of sale shall be as provided in this section.

(Added by Stats. 1976, Ch. 73.)

873.650. (a) The court shall prescribe the contents of the notice of sale, which shall include a description of the property, the time and place of sale, and a statement of the principal terms of sale. In place of the principal terms of sale, the notice may refer to an order of the court or to a written statement containing such information which may be inspected at the place of business of the referee or the referee’s attorney.

(b) A notice of private sale shall state a place where bids or offers will be received and a day on or after which the sale will be made.

(Added by Stats. 1976, Ch. 73.)

873.660. (a) The court may order securities listed on an established stock or bond exchange, and personal property that is perishable, that will depreciate in value if not promptly disposed of, or that will incur loss or expense by being kept, to be sold upon such notice and conditions as may be appropriate.

(b) Unless otherwise ordered by the court, title to property sold pursuant to this section passes without court confirmation. The referee is responsible for the actual value of the property until, after return and proper showing, the court approves the sale.

(Added by Stats. 1976, Ch. 73.)

873.670. (a) A sale at public auction to the highest bidder shall be held in the county in which the action is pending or such other place as may be specified by the court.

(b) Unless otherwise ordered by the court, personal property shall be present at the sale.

(c) The sale may be postponed by the referee by public declaration as provided for sales upon execution.

(Added by Stats. 1976, Ch. 73.)

873.680. (a) A sale at private sale shall not be made before the day specified in the notice of sale but shall be made within one year thereafter.

(b) The bids or offers shall be in writing and left at the place designated in the notice at any time after the first publication or, if none, the posting of the notice.

(Added by Stats. 1976, Ch. 73.)

873.690. (a) The following persons shall not purchase property sold in the action directly or indirectly:

(1) The referee.

(2) The attorney of a party.

(3) The guardian or conservator of a party, unless for the benefit of the ward or conservatee.

(b) All sales contrary to this section are void except that a sale to a bona fide purchaser following a sale contrary to this section shall not be disturbed.

(Amended by Stats. 1979, Ch. 730.)

ARTICLE 3. Consummation of Sale [873.710 - 873.790] (Article 3 added by Stats. 1976, Ch. 73.)

873.710. (a) Upon making a sale of property, the referee shall report the sale to the court.

(b) The referee’s report shall contain, in addition to such other information as may 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.

(8) Other material facts relevant to the sale and the confirmation proceeding.

(Added by Stats. 1976, Ch. 73.)

873.720. (a) A purchaser, the referee, or any party may move the court to confirm or set aside the sale.

(b) The moving party shall 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.

(Added by Stats. 1976, Ch. 73.)

873.730. (a) At the hearing, the court shall examine the report and witnesses in relation to the report.

(b) The court may confirm the sale notwithstanding a variance from the prescribed terms of sale if to do so will be beneficial to the parties and will not result in substantial prejudice to persons interested in the sale.

(c) The court may vacate the sale and direct that a new sale be made if it determines any of the following:

(1) The proceedings were unfair or notice of sale was not properly given. If there is no finding at the hearing of unfairness or improper notice, the sale may thereafter not be attacked on such grounds.

(2) The sale price is disproportionate to the value of the property.

(3) It appears that a new sale will yield a sum that exceeds the sale price by at least 10 percent on the first ten thousand dollars ($10,000) and 5 percent on the amount in excess thereof, determined after a reasonable allowance for the expenses of a new sale.

(Added by Stats. 1976, Ch. 73.)

873.740. (a) If at the hearing under Section 873.730 a responsible bidder makes a written increased offer that exceeds the sale price by at least 10 percent on the first ten thousand dollars ($10,000) and 5 percent on the amount in excess thereof, the court in its discretion may do either of the following:

(1) Vacate the sale and direct that a new sale be made.

(2) Vacate the sale, accept the increased offer, and confirm the sale to the offerer.

(b) Except as provided in subdivision (c), the amount by which an increased offer exceeds the sale price is determined on the basis of the gross amount of the increased offer including any commission on the increased offer to which an agent may be entitled.

(c) Where in advance of sale the court has so ordered or the parties have so agreed, if an increased offer is made by a party to the action who is not represented by an agent, the amount by which an increased offer of a nonparty exceeds the sale price is determined on the basis of the net amount of the increased offer excluding any commission on the increased offer to which an agent may be entitled.

(Added by Stats. 1976, Ch. 73.)

873.745. The amount of agents’ commissions on the sale, if any, shall be fixed by the court and divided or limited in the manner provided for private sales of real property in decedents’ estates.

(Added by Stats. 1976, Ch. 73.)

873.750. (a) Upon confirmation of a sale, the court shall order the referee to execute a conveyance or other instrument of transfer, to collect the proceeds, take security, and perform other acts required to consummate the sale.

(b) The order may direct the referee concerning the distribution, deposit, or securing of sale deposits and sale proceeds.

(Added by Stats. 1976, Ch. 73.)

873.760. If the purchaser, after the confirmation of the sale, fails to pay the sale price, the purchaser is subject to the court’s jurisdiction and to further proceedings in the action. Upon such failure, a party, or the referee, may upon notice move the court to order either of the following forms of relief:

(a) Resale of the property upon notice as provided in this chapter. If any loss is occasioned thereby, the referee may recover the amount of such loss and costs and expenses incurred, including a reasonable attorney’s fee, from the purchaser who failed to pay.

(b) Maintenance by the referee of an action against the purchaser for the amount of the sale price. If the referee recovers judgment, the referee shall be awarded a reasonable attorney’s fee against the purchaser.

(Added by Stats. 1976, Ch. 73.)

873.770. Where the purchaser is a party or lienholder entitled to a share of the proceeds of sale, the referee may:

(a) Take the purchaser’s receipt for so much of the proceeds of sale as belongs to the purchaser.

(b) Take security, or other arrangement satisfactory to the referee, for payment of amounts which are or may become due from the purchaser on account of the expenses of sale, general costs of the action, and costs of the reference.

(Added by Stats. 1976, Ch. 73.)

873.780. The court may make orders relating to the closing of a sale after confirmation, including escrow and closing provisions and, if the referee and purchaser so agree and the court upon noticed motion determines it will not result in substantial prejudice to the parties, may make adjustments varying the terms of sale based on after-discovered defects.

(Added by Stats. 1976, Ch. 73.)

873.790. (a) Upon fulfillment of the terms of sale, the referee shall execute a conveyance or other instrument of transfer to the purchaser.

(b) The conveyance or transfer of real property and the order authorizing such conveyance or transfer shall be recorded in each county in which the property is located.

(Added by Stats. 1976, Ch. 73.)

ARTICLE 4. Disposition of Proceeds of Sale [873.810 - 873.850] (Article 4 added by Stats. 1976, Ch. 73.)

873.810. The court shall order the proceeds of sale and any security therefor to be paid, transferred, deposited in court, placed in trust, or invested in State of California or United States government obligations or interest-bearing accounts in an institution whose accounts are insured by an agency of the federal government, to or for the benefit of the persons in interest entitled thereto, as may be appropriate or as specifically provided in this article.

(Added by Stats. 1976, Ch. 73.)

873.820. The proceeds of sale for any property sold shall be applied in the following order:

(a) Payment of the expenses of sale.

(b) Payment of the other costs of partition in whole or in part or to secure any cost of partition later allowed.

(c) Payment of any liens on the property in their order of priority except liens which under the terms of sale are to remain on the property.

(d) Distribution of the residue among the parties in proportion to their shares as determined by the court.

(Added by Stats. 1976, Ch. 73.)

873.830. Where a part only of the property is sold, a tenant for life or years in an undivided share of the whole property may have his estate equitably set off in any part of the property not sold by way of complete or partial satisfaction of his share of the proceeds.

(Added by Stats. 1976, Ch. 73.)

873.840. (a) The court shall ascertain the proportion of the proceeds of sale that will be a just and reasonable sum for the satisfaction of the estate of a tenant for life or years and shall order such amount distributed to him or held for his benefit.

(b) The court shall ascertain the proportional value of any vested or contingent future right or estate in the property and shall direct such proportion of the proceeds of sale to be distributed, secured, or held in such a manner as to protect the rights and interests of the parties.

(c) Notwithstanding any other provision of this section, in the case of an estate for life or defeasible estate with remainder over, the court may direct that the entire proceeds of sale be placed in trust as provided in this section upon a showing that the establishment of such a trust is economically feasible and will serve the best interests of the parties. The court shall appoint a trustee, upon security satisfactory to the court, who under court supervision shall invest and reinvest the proceeds, pay the income of the investments, if any, to the life tenant or owner of the defeasible interest, and upon termination of the life or defeasible estate, deliver or pay the corpus of the trust estate to the remainderman. The court shall retain jurisdiction over the settlement of the accounts of the trustee and in all matters necessary for the proper administration of the trust and the final distribution of the trust fund.

(Added by Stats. 1976, Ch. 73.)

873.850. When the proceeds of the sale belonging to persons who are parties to the action, whether known or unknown, have not been allocated among such parties, the action may be continued as between such parties, for the determination of their respective claims thereto, which must be ascertained and adjudged by the court. Further testimony may be taken in court, or by a referee, at the discretion of the court, and the court may, if necessary, require such parties to present the facts or law in controversy, by pleadings, as in an original action.

(Added by Stats. 1976, Ch. 73.)