Motion for Interlocutory Judgment
CASE NUMBER: 25CV-0209224 Tentative Ruling on Motion for Interlocutory Judgment: Plaintiff Dean Michael Pollycove moves for an interlocutory judgment directing partition of real property by sale pursuant to Code of Civil Procedure § 872.720, and for appointment of a partition referee pursuant to C.C.P. § 873.010.
The Court finds that this motion is premature. Code of Civil Procedure sections 874.311, et seq. is the Partition of Real Property Act. It sets forth the procedure for partition of real property held in tenancy in common where there is no record binding all the cotenants which governs partition of the property. Plaintiff’s Complaint alleges the real property at issue here, 16 acres of unimproved land in Shasta County, is owned by Plaintiff and Defendants in shares as tenants in common. Plaintiff’s Motion for Interlocutory Judgment represents that there is no agreement in a record binding all the cotenants which governs the partition of the property.
Therefore, the Partition of Real Property Act applies. However, Plaintiff now seeks an order of partition by sale before the Court has determined the fair market value of the property, and before the cotenants have been given the opportunity to purchase the interest of the cotenant requesting sale as required by statute.
CCP § 874.316 provides that the court shall determine the fair market value of the property. If the cotenants agree to a value or method of valuation, the court shall adopt the value or the value produced by the agreed method. CCP § 874.316(b). Whether the parties agree to a value, or whether it is determined by an appraisal ordered by the court, the court then conducts a hearing to determine fair market value. CCP § 874.316(f). After this hearing, but before considering the merits of the partition action, the court shall determine the fair market value of the property and send notice to the parties of the value. CCP § 874.316
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The CCP provides that after the determination of value under Section 874.316, the court shall send notice to the parties that any cotenant may buy the interest of the cotenant that requested the sale. CCP § 874.317(a). There is no evidence before the Court that the cotenants have been given the opportunity to purchase the interest of the cotenant requesting the sale.
The Motion is DENIED without prejudice as premature. The parties are ordered to appear today to discuss the status of the case. The parties should be prepared to address whether the parties can agree to a value or method of valuation. If the parties cannot agree, then the Court will proceed to appoint a disinterested real estate appraiser as required by CCP § 874.316.
PORTFOLIO RECOVERY ASSOCIATES, LLC VS. FOOTE