A partition action is a legal proceeding in which one or more co-owners of real property seek to force the division or sale of the property when they can no longer agree on its use, management, or disposition. In California, the right to partition is generally considered absolute under Cal. Code Civ. Proc. § 872.710(b), which states that “a partition may be commenced and maintained by any of the cotenants.” However, this right is not without limits. Defendants in a partition action can raise certain affirmative defenses to delay, restrict, or even defeat the request for partition. Understanding these defenses is critical for both plaintiffs seeking partition and defendants opposing it.
1. Waiver by Contract
One of the most common defenses to a partition action is the existence of a binding agreement waiving or restricting the right to partition. California law recognizes that cotenants may voluntarily limit their partition rights through contract. Such agreements must be clear, unambiguous, and enforceable under general contract principles.
In American Medical International, Inc. v. Feller, 59 Cal. App. 3d 1008 (1976), the court upheld a written agreement among co-owners that expressly prohibited partition for a specific term. However, these restrictions are strictly construed; vague or implied limitations are typically insufficient.
2. Improper Purpose or Bad Faith
While the statutory right to partition is broad, courts may deny or condition partition where the plaintiff’s request is motivated by bad faith or an improper purpose, such as harassment or to gain an unfair advantage in a related dispute. In such cases, the defendant may argue that equitable principles under Cal. Code Civ. Proc. § 872.140 allow the court to fashion relief that avoids injustice.
3. Equitable Considerations and Unclean Hands
The equitable doctrine of “unclean hands” can be asserted where the plaintiff’s conduct related to the property is wrongful and directly connected to the partition claim. For example, a co-owner who has wrongfully excluded another from the property or misappropriated rental income may find their partition rights limited or conditioned. In De Roulet v. Mitchel, 70 Cal. App. 2d 120 (1945), the court recognized that equitable defenses apply in partition proceedings.
4. Laches (Unreasonable Delay)
A defendant may assert the defense of laches when the plaintiff has unreasonably delayed bringing the partition action and the delay has prejudiced the defendant. While there is no statute of limitations expressly barring partition, equitable doctrines can limit relief if delay has caused detrimental reliance or other harm.
5. Offset for Contributions and Accounting Issues
While not a complete bar to partition, the defendant can assert a right to offset the plaintiff’s share of the sale proceeds for unpaid obligations, such as mortgage payments, property taxes, insurance, or improvements made solely by the defendant. These offsets are authorized under Cal. Code Civ. Proc. § 872.140 and can materially affect the economic outcome of the case, sometimes deterring plaintiffs from proceeding.
6. Title Disputes
If the parties dispute ownership interests in the property, the defendant can raise this as a defense. A partition action cannot proceed until ownership is established. In such cases, the court may require resolution of the title dispute—via a quiet title action or other proceeding—before ordering partition.
7. Infeasibility of Physical Division
In partition-in-kind cases (where the property is divided physically rather than sold), the defendant may argue that physical division is feasible and more equitable than a forced sale. Conversely, the defendant can challenge partition-in-kind by showing that physical division would be impractical or would substantially reduce the property’s value, as contemplated in Cal. Code Civ. Proc. § 872.810.
8. Other Contractual or Legal Restrictions
Some properties are subject to covenants, conditions, and restrictions (CC&Rs), homeowners’ association rules, or other legal limitations that may complicate or restrict partition. For example, certain TIC (tenancy in common) agreements or LLC operating agreements containing partition restrictions have been upheld as enforceable.
Practical Considerations for Asserting Defenses
From a litigator’s perspective, affirmative defenses to partition require:
- Early investigation of written agreements, title history, and ownership records.
- Gathering evidence of the plaintiff’s motives and conduct.
- Calculating and documenting all offsets and contribution claims.
- Raising equitable arguments supported by facts showing prejudice or unfairness.
The goal is not always to bar partition entirely—sometimes the strategic objective is to control the manner, timing, and financial outcome of the process.