Can I force my brother to sell an inherited house?
Not by yourself, but a court can. Once you and your brother own the house together, either of you can file a partition action, and the court will divide the property or order it sold (Code of Civil Procedure section 872.210). Before a sale, he will usually get the chance to buy you out.
Do all siblings have to agree to sell inherited property?
To sell it voluntarily, yes, because every owner has to sign the deed. Without that agreement, the way to a sale is a partition action, where the court can order the sale over an objection.
While the house is still in a trust or a probate estate, the siblings do not yet own it as co-owners. The trustee or executor controls it, and disagreements go to the probate court. Partition becomes the tool once title has passed to the heirs.
What happens if one sibling doesn’t want to sell the house?
They can buy out the sibling who wants to sell. Under the Partition of Real Property Act, once a co-owner asks for a sale, the others can elect to buy that share at the court-determined value (Code of Civil Procedure section 874.317). If no one buys, the court looks first at dividing the property, and orders a sale only if division would cause great prejudice.
What is the new partition law in California?
The Partition of Real Property Act, which applies to partitions of property held as tenants in common filed on or after January 1, 2023, unless all the co-owners have a binding agreement that governs partition (Code of Civil Procedure section 874.311). It adds a court valuation, a buyout right and a preference for dividing the property.
- The court determines value of the property.
- Buyout. If a co-owner asked for a sale, the others have 45 days after notice to elect to buy that share. Payment is due by a date the court sets, no sooner than 60 days after the notice, with a further 20 days for the others to buy any share left unpaid (section 874.317).
- Division first. If interests remain, the court orders the property divided unless that would cause great prejudice to the co-owners as a group (section 874.318).
- Factors. The court weighs whether the property can practicably be divided, whether the pieces would be worth materially less than the whole, how long the family has owned it, sentimental attachment, a co-owner’s lawful use of it, and who has paid taxes, insurance and upkeep (section 874.319).
- Open-market sale. If a sale is ordered, the default is a listing with a licensed broker at no less than the court-determined value (section 874.320).
What is the difference between partition by sale and partition in kind?
Partition in kind physically divides the property among the owners. Partition by sale sells it and divides the money. The default in California is division (Code of Civil Procedure section 872.810), but the court orders a sale if the parties agree or a sale would be more equitable (section 872.820).
| Partition in kind | Partition by sale | |
|---|---|---|
| What happens | The land is divided into separate parcels | The property is sold and the proceeds divided |
| When courts order it | Large or divisible land, such as acreage or a multi-unit lot | A single-family house, or whenever division would be unfair |
| Typical inherited house | Rarely practical | The usual outcome if no one buys out the others |
What if a sibling is living rent free in the inherited house?
Living in the house does not automatically mean they owe the others rent. But a partition action includes an accounting between the owners, so the mortgage, taxes, insurance and repairs each person paid, and the use one person has had of the property, are taken into account when the proceeds are divided.
Contributions to taxes, insurance and upkeep are also one of the factors the court weighs under the new law (section 874.319). Keep records of everything you have paid.
Who pays for a partition action?
The owners share the costs. The court apportions the costs of partition among the parties in proportion to their interests, or in another way that is equitable (Code of Civil Procedure section 874.040). Those costs include reasonable attorney’s fees incurred for the common benefit, the referee’s fees, surveys and title reports (section 874.010).
How much does a partition action cost, and how long does it take?
It depends on whether the other owners fight. A partition where everyone accepts the valuation and someone buys out the others can resolve much faster and more cheaply than one that goes through disputes over value, the accounting and the sale. Mark gives you an estimate for each stage at the outset.
A partition action affects title, so it is usually recorded against the property with a lis pendens, which warns buyers and lenders that the property is in litigation. See real property litigation.
This page explains California law in general terms. It is not legal advice, and reading it does not create an attorney-client relationship. Statutes change; the code sections linked above are the current text on the California Legislature’s website.