Judge: Christopher K. Lui, Case: 22STCV10801, Date: 2023-01-12 Tentative Ruling

Case Number: 22STCV10801    Hearing Date: January 12, 2023    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.  Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.  If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

            This is an action for partition and accounting regarding real property co-owned by Plaintiff and defendant.

Defendant Maria Exaltacion Hernandez, an individual and as Trustee of The Maria Exaltacion Hernandez Family Living Trust, U/A dated May 23, 2017 moves for an order declaring that the real property partition at issue is subject to the California Uniform Partition of Heirs property Act, and an order that the Plaintiff adhere to the Act and allow Defendants to purchase Plaintiff’s interest in the real property,

TENTATIVE RULING

Defendant Maria Exaltacion Hernandez, an individual and as Trustee of The Maria Exaltacion Hernandez Family Living Trust, U/A dated May 23, 2017’s motion to declare and enforce Heirs property is DENIED.

ANALYSIS

Motion To Declare and Enforce Heirs Property

Defendant Maria Exaltacion Hernandez, an individual and as Trustee of The Maria Exaltacion Hernandez Family Living Trust, U/A dated May 23, 2017 moves for an order declaring that the real property partition at issue is subject to the California Uniform Partition of Heirs Property Act (“Act”), and an order that the Plaintiff adhere to the Act and allow Defendants to purchase Plaintiff’s interest in the real property,

            Defendant argues that the subject property is an “Heirs Property” under the Act, (Civ. Proc. Code, § 874.312(e)) and thus, Defendant has the right to have the property appraised to determine fair market value and her statutory right to make a first offer to purchase the Plaintiff’s share of the real property.

            Defendant argues that after the Court determines that a property is subject to the Act, i.e., an “Heirs Property,” the Court should order an appraisal to determine the fair market value. (Civ. Proc. Code, § 874.316(a).) Defendant argues that, after the appraisal by a disinterested licensed real estate appraiser is filed with the Court, each part is given an opportunity to object to the appraisal valuation and there may be a hearing if any such objections are filed. (Civ,. Proc. Code, § 874.316(d)-(g).) After the real property’s value is determined, then the purchasing party shall make payment to the selling party for the share of real property.

            Defendant argues that, in the present matter, the parties are joint/equal co-tenants and each hold a 50% interest in the property, and Plaintiff is entitled to a payment equal to 50% of the appraisal value of the property. If Defendant does not make the purchase, then the property may be listed on the market for other buyers.

            Defendant requests that the Court grant this motion and rule that the property at issue in this matter is an “Heirs Property” under the California Uniform Partition of Heirs Property Act, and that the parties be directed to select a neutral appraiser for the property within 21 days so that the appraisal and buy-out may be done promptly.

            However, as Plaintiff points out in the Opposition, Defendant has not presented any evidence whatsoever to support Defendant’s position that the requirements of § 874.312(e) are satisfied. More importantly, § 874.312(e) is no longer effective as of January 1, 2023.

            The prior version of § 874.312(e) read as follows:

(e) "Heirs property" means real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action:

(1) There is no agreement in a record 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:

(A) Twenty percent or more of the interests are held by cotenants who are relatives.

(B) Twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased.

(C) Twenty percent or more of the cotenants are relatives. 

            However, the current version of § 874.312, effective January 1, 2023 eliminates the definition of “Heirs property” and now reads as follows:

For purposes of this chapter, the following definitions apply:

(a) “Determination of value” means a court order determining the fair market value of the property under Section 874.316 or 874.320 or adopting the valuation of the property agreed to by all cotenants.

(b) “Partition by sale” means a court-ordered sale of the entire property, whether by auction, sealed bids, or open-market sale conducted under Section 874.320.

(c) “Partition in kind” means the division of property into physically distinct and separately titled parcels.

(d) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

     (Civ. Proc. Code § 874.312.)

            There is currently no provision for “Heirs property” as set forth in the motion in the current version of the Partition of Real Property Act, §§ 874.311 – 874.323, effective January 1, 2023.

            It appears that the procedure set forth in CCP § 874.317, “Cotenant’s options to buy interest in partition buy sale,” now governs. This motion is not based on that code section.

            For the foregoing reasons, the motion to declare and enforce Heirs property is DENIED.