Judge: Christian R. Gullon, Case: 22PSCV00883, Date: 2024-01-25 Tentative Ruling

Case Number: 22PSCV00883    Hearing Date: January 25, 2024    Dept: O

Tentative Ruling

Defendant Martin Chappell’s MOTION TO APPOINT APPRAISER PURSUANT TO UNIFORM PARTITION OF HEIRS PROPERTY ACT AND TO APPOINT REFEREE TO DETERMINE OFFSETS AFTER THE APPRAISAL IS OBTAINED is GRANTED.

Background

This is a real property case. Plaintiff EDWARD CHAPPELL alleges the following against Defendants LILLIAN CHAPPELL (“Lillian”)[1] and MARTIN CHAPPELL (“Martin”): Plaintiff and Lillian were married, and Martin is their son. Defendant Martin resides with Plaintiff and is committing waste. Plaintiff seeks partition by sale because Defendants refuses to buy out Plaintiff's interest in the real property. (Complaint p. 3.)[2]

On August 18, 2022, Plaintiff filed the instant action for partition.

On October 12, 2022, Defendant Martin filed his answer.

On October 23, 2023, Defendant filed the instant motion.

On October 25, 2023, the court held a Status Conference Re: Mediation; Order to Show Cause Re: Defendant's Failure to Appear on June 26, 2023; Order to Show Cause Re: Why the Court Should Not Strike Defendant's Answer. The minute order, states, in pertinent part, that the OSCs were discharged and that “Plaintiff Counsel's oral motion for Court sponsored mediation through Mediator John Irwin is heard and GRANTED.”

Legal Standard

Defendant brings forth the motion under the Uniform Partition of Heirs Property Act (“Act”), former Code of Civil Procedure § 874.311 et seq. (Motion p. 5.)
 

The Act governs actions filed on or after January 1, 2022,[3] for the partition of real property that is "heirs property" as defined in the Act. According to Civil Code of Procedure section 874.312, subdivision (e), “heirs property" means real property held in tenancy in common which satisfies all the following requirements as of the filing of a partition action:

(1) There is no agreement binding all the cotenants which governs the partition of the property.

(2) One or more of the cotenants acquired title from a relative, whether living or deceased.

(3) Any of the following applies: 20% or more of the interests are held by cotenants who are relatives; 20% or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or 20% or more of the cotenants are relatives.
 

When partition is ordered, the court may apportion the costs of partition, including an appraisal fee, except that the court cannot apportion the costs of partition to any party that opposes the partition unless doing so is equitable and consistent with the purposes of the Act. (Civ. Proc. Code, § 874.321.5.)

Discussion

Martin seeks to buy out Plaintiff’s interest and have a referee appointed to determine offsets.

A.     Heirs Property

First, there is no agreement in record binding the co-owners of the Property which governs the partition of the Property. (Decl. Martin Chappell, p. 10 of 61 of PDF.)

Second, the property is “heirs property” because the 2002 grant deed shows that the property is titled in the names of Plaintiff and Lillian Chappell, husband and wife, and their son, Martin Chappell. (Verified Complaint, see also Decl. Talkov, Ex. 1.) On October 8, 2022, Lillian Chappell passed away, and an affidavit of death of joint tenant was recorded on November 14, 2022, leaving title in the names of Edward Chappell and Martin Chappell. (Decl. Talkov, Ex. 6.) Thus, as both Plaintiff and Martin acquired title from Lillian (a relative, i.e., related by blood pursuant to form Code Civ. Proc. § 874.312(i)), the second prong is satisfied.

Third, according to Counsel Talkov’s declaration, Plaintiff and Martin each have a 50% interest in the property. (Motion p. 15 of 61 of PDF.) Thus, more than 20% of the interests are held by cotenants (Plaintiff and Martin) who are relatives (father and son).

Therefore, this is “heirs property.”  

B.     Appointing an Appraiser

Next, to determine the value of the property, Martin requests that this Court follow the requirement in the Act for the “appoint[ment of] a disinterested real estate appraiser licensed in the State of California to determine the fair market value of the property assuming sole ownership of the fee simple estate.” (Code Civ. Proc. § 874.316(d).)

Here, Martin proposes Kevin J. Howell, AL025985. The appraiser has no relationship with the parties nor Martin’s counsel. (Decl. Talkov, ¶ 2.)

Thus, Howell is appointed as the appraiser.

C.    Martin Elects to Purchase Plaintiff’s Interest

Martin seeks to exercise the right of first refusal.

The Act provides that: “If any cotenant requested partition by sale, the court shall, after the determination of value under Section 874.316, send notice to the parties that any cotenant except a cotenant that requested partition by sale may buy all the interests of the cotenants that requested partition by sale.” (Code Civ. Proc. § 874.317(a), emphasis added.)

Here, as Plaintiff filed an action for partition by sale, not Martin, then Martin may buy Plaintiff’s interest.

Thus, Martin may buy all the interests of Plaintiff. (Motion p. 7, citing See Code Civ. Proc. § 874.317(b).)

D.    Referee

Finally, once the value is determined and partition is to ensue, a referee is to be appointed.

Here, per Martin’s request, the court appoints Matthew L. Taylor to act as the referee in this case. (Motion p. 8.) The referee will determine whether Martin is entitled to offsets for his overpayment of mortgage, taxes, and insurance for the Property from 2013 through the present and his pay off of the mortgage on the Property on October 4, 2010, in the sum of $47,686.78 and whether Martin should receive a setoff as a party purchaser of 50%. (Code. Civ. Proc. § 873.060 [“The referee may perform any acts necessary to exercise the authority conferred by this title or by order of the court.”].)

Conclusion

Based on the foregoing, the motion is granted.