In a Partition lawsuit, at least one co-owner of a real estate property is asking the court to let that party out of their co-ownership of the property through one of three options: 1) physically dividing the property into separate, individually-owned pieces; 2) selling the property and dividing up the proceeds; 3) or forcing the other co-owners to pay the petitioning co-owner an amount equal to the value of his or her proportionate ownership of the property. You may question why a lawsuit is necessary to achieve any of these three outcomes. The simple answer is that other co-owners may have no interest in any of those three options, and so a court order in a partition lawsuit may be required to grant the first co-owner the relief he or she is seeking. Of course, such lawsuits can be costly, and an imposition on all parties when resolving the matter could have been done out of court. Which brings us to the question of whether a plaintiff (the party seeking partition) or a defendant (a party challenging the partition) can seek attorneys’ fees in a partition action.

A Court Does Have the Power to Award Attorneys’ Fees…

The short answer is that California law does provide a mechanism by which either a plaintiff or a defendant can request that attorneys’ fees be awarded, meaning the other party will be required to pay for some or all of the fees associated with bringing or defending against the partition action. California Code of Civil Procedure 874.040 states that, “the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.”

…But the Court Will Rely on its Own Discretion in Doing So

While the California code does give a court the right to assess attorney fees against either party, it does raise the further question of what “as may be equitable” means. “Equitable” generally means “fair” or “just” under the law, and, in practice, it really means that the court has discretion to award attorneys’ fees as it sees fit. So long as a trial court does not “abuse its discretion,” its decision to grant or not grant attorneys’ fees will generally stand, and this standard gives a trial court wide latitude in making this decision. Thus, the court may look at the actions of the parties in causing unnecessary and extended litigation in determining whether to grant such an award.

Work With an Experienced Los Angeles Partition Attorney

Attorney Laine T. Wagenseller of the Wagenseller Law Firm in Los Angeles has published numerous articles on real estate law and works with individuals and businesses across Southern California in resolving real estate matters, including partition actions. Contact the Wagenseller Law Firm today to schedule a consultation in order to evaluate your situation and begin working towards a positive resolution in a partition lawsuit.