When co-owners go through a partition action, a common and very practical question is: “Can I get paid back for everything I have put into this property?” Maybe you have been the one covering the mortgage, paying the property taxes, keeping up the insurance, or paying for repairs while your co-owner has contributed little or nothing. In that situation, it feels intuitively unfair for the other co-owner to walk away with half the sale proceeds. California law recognizes that concern. Partition is an equitable process, and the court has the power to award credits and reimbursements for expenses that preserved or improved the property for everyone’s benefit, so that one co-owner is not unjustly enriched at the expense of the other.
What is a Partition?
Partition is a legal process used to divide real or personal property among co-owners, typically when they cannot agree on how the property should be held, used, or sold. The primary purpose of a partition action is to sever the unity of possession among co-owners, thereby terminating their common interests in the property. See Cummings v. Dessel (2017) 13 Cal.App.5th 589. Partitions largely avoid the inconveniences and conflicts arising from joint possession, while facilitating the transmission of title and avoiding unreasonable restraints on the property’s use and enjoyment. See Summers v. Superior Court (2018) 24 Cal.App.5th 138. Co-owners of real property have an absolute right to bring partition actions against their co-owners. While courts supervise and implement the partition process, the decision to seek partition itself is not a matter of judicial discretion; rather, partition is treated as an inherent incident of co-ownership. See Thomas v. Witte (1963) 214 Cal.App.2d 322.
How Courts Make Things Fair Between Co-Owners
In California, a partition case is not just a rigid “technical” lawsuit. It is an equitable proceeding, which means the court’s job is to make sure the overall result is fair when it comes to who has carried the costs and who has enjoyed the benefits of the property. California Code of Civil Procedure § 872.140 gives the court very broad power in a partition action. It allows the court to “order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.” In plain terms, this means the judge can review who paid what, who benefited, and then adjust the numbers so that one co-owner is not unfairly stuck with more than their share.
In Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035-36, the court made it clear that every partition case ends with a “final accounting,” where the judge looks at what each co-owner should be charged for and what each should get credit for. In that accounting, a co-owner can receive credits for money they spent beyond their fractional share on things like necessary repairs, improvements that increased the property’s value, property taxes, payments of principal and interest on mortgages and other liens, insurance that protected the property for everyone’s benefit, and efforts to protect and preserve title. So, if you are the co-owner who has been paying more than your fair share of these types of expenses for the benefit of the jointly owned property, the court in a partition action must give you an equitable credit or reimbursement so that your co-owner does not walk away with an unfair financial advantage.
Getting Paid Back for Pre-Partition Expenses
More than a century ago, the California Supreme Court confirmed the basic rule that protects paying co-owners. In Willmon v. Koyer (1914) 168 Cal. 369, 372, the Court held that when a co-tenant pays more than their proportionate share of expenses related to jointly owned property, a right to seek contribution from the non-paying co-tenant arises as soon as the expenditure is made. In other words, if you have been paying more than your share of costs necessary to protect or maintain the property, you are entitled to be made whole for those out-of-pocket expenses before any remaining sale proceeds are divided.
The right to contribution is not limited to just mortgage and property tax payments. It also covers other charges against the property and money spent for the preservation of the property, which can include insurance premiums, essential utilities, and routine maintenance that keep the property in good shape and protect its value. See Milian v. De Leon (1986) 181 Cal.App.3d 1185. Code of Civil Procedure § 874.010(e) reinforces this by providing that “costs of partition” include other disbursements or expenses that the court determines were incurred or paid for the common benefit. In Finney v. Gomez (2003) 111 Cal.App.4th 527, the court applied this concept and held that a co-owner was entitled to a credit for payments made toward the mortgage, property taxes, and other carrying costs because those payments were necessary to preserve the co-owned property and could be reimbursed through post-sale accounting.
You do not need a written agreement with your co-owner to have a right to reimbursement. That right comes from the co-ownership itself and basic fairness, not from a contract. In Southern Adjustment Bureau v. Nelson (1964) 230 Cal.App.2d 539, 541, the court explained that when a co-tenant uses their own money to preserve the shared property, their investment in the property increases by the full amount they spent, and when the property is sold, they are entitled to get that entire amount back before the remaining proceeds are divided between the co-owners. In practical terms, even if you never signed anything about splitting expenses, you can still ask the court to apply this default contribution rule so your co-owner does not get a free ride on your payments.
What This Means for Co-Owners in Partition
If you are considering a partition action, or you are already involved in one, it is essential to gather and organize proof of your payments for mortgage, taxes, insurance, utilities, maintenance, and any other charges that preserved or improved the property. Those records can support a claim for reimbursement or credits in the final accounting, helping ensure that the ultimate division of sale proceeds is equitable and that you are not subsidizing your co-owner’s share of the property without compensation for your share of the costs.
