After a judgment for partition by sale is obtained, most lawyers and clients alike are unaware of the procedure for executing the sale. Clients would be well served to understand the details in the final stage. We have outlined the basic steps below in order to aid any parties in this process:
Step 1: Manner of Sale
The court will appoint a referee who will have authority to sell the property at either a public auction or a private sale, whichever one the court determines to be more beneficial to the parties. (C.C.P. 873.010, 873.520).
Step 2: Sales Procedures
The parties will agree to terms and conditions of the sale in writing. If they cannot come to an agreement, the referee will recommend the terms and conditions to the court, and the court will hold a hearing to decide whether to accept that recommendation. (C.C.P. 873.610).
Step 3: Notice
Notice of the sale must be given in accordance with California Code of Civil Procedure, Sections 873.640 and 873.650, which will include a description of the property, the time and place of sale, and a statement of the principal terms of sale. If the sale is a private sale, the notice must state a place where bids or offers will be received and a day on or after which the sale will be made. (C.C.P. 873.650).
Step 4: Sale
Once the property is sold to the highest bidder at a public auction or private sale, the referee will report the sale to the court. (C.C.P. 873.710, 873.680). Then, the court must either confirm or vacate the sale. (C.C.P. 873.720). A court might vacate the sale and direct a new sale if: (C.C.P. 873.730)
- The proceedings were unfair
- There was lack of proper notice
- The sale price is disproportionate to value of the property
- A new sale will exceed current sale price by a certain threshold amount
Step 5: Confirmation of Sale
Once the sale is confirmed, the court will order the referee to collect the proceeds of the sale. (C.C.P. 873.750). If the purchaser fails to pay the sale price, the court may order a resale of the property, or allow the referee to bring an action against the purchaser for the full amount of the sale price. (C.C.P. 873.760).
Step 6: Conveyance of Transfer
The referee will execute a conveyance or other instrument of transfer to the purchaser, which must be recorded. (C.C.P. 873.790).
Step 7: Disposition of Proceeds of Sale
The court will order proceeds of the sale to be paid out in the following order: (C.C.P. 873.820)
- Expenses of the sale
- Other costs of partition
- Liens on the property in their order of priority except for liens which under the terms of sale are to remain on the property
- Distribution among the parties in proportion to their shares
The attorneys at Schorr Law have handled many partition cases. For help selling a property after a judgment or bringing a partition action contact us at (310) 954-1877, email@example.com or by using the Contact Form.