Can one sibling force the sale of Mom's house?
Imagine the family of Phyllis and her three adult kids. Phyllis passed away this spring and her house has been paid off years ago. It now belongs to the kids - Janice, Jack, and Claire - in equal shares. Janice moved in during her mom's last years as the live-in caretaker and she's still there, still paying the property taxes, and still mowing the lawn. Jack lives out of state and has a family of his own to look after, and that one-third share of a house he'll never live in is starting to look like money he might never get to spend. Claire has her own family and her own bills too, and she's spent the last six months as the designated peacemaker on a group text that keeps getting more tense. Now Jack wants to sell the house and take his third of its value.
Can he do that?
In short… yes. Any co-owner can file what's called a partition action, even a sibling who only owns a small share, and the rest of the family can't just refuse to go along. The right to ask a court to divide co-owned property has been the law for many years.
Any co-owner can file to force a sale. But for cases filed on or after January 1, 2023, actually getting that sale ordered is much harder.
But the law recently shifted in favor of those who don't want to sell. If you've been up late reading horror stories about courthouse auctions and investors buying family homes for less than they're worth (if that's you, we're sorry), you've been reading about the old law. For partition cases filed on or after January 1, 2023, California follows a different process, and it gives hope to the siblings who want to keep the house.
For a long time, the sibling who wanted to sell held most of the cards. Courts can't carve up a house the way they can carve up farmland, so when one co-owner filed for partition, the usual outcome was a court-ordered sale. Those sales were often auctions. Auction prices for houses tend to run below market, sometimes well below, and the winning bidder was usually an investor rather than anyone in the family. Even families who never went near a courtroom felt this, because the threat of a forced sale was a pretty effective way to pressure a sibling into selling their share for cheap.
Here's the change at a glance, and then we'll walk through it:
Side by side
Forcing a sale: the old rules and the new ones
| Feature | Filed before 2023 | Filed since Jan 1, 2023 |
|---|---|---|
| Appraisal before anything is sold | Not required | Required, by a disinterested licensed appraiser |
| Family buyout right | None | 45 days to buy the filing co-owner’s share at appraised value |
| Court's starting point for the house | Sale | Division preferred; sale only after weighing seven factors |
| Who lives there and who paid upkeep | Largely irrelevant | Factors the court must weigh |
| How a sale happens | Auction common, often below market | Open-market listing with a broker, at appraised value or better |
| Any co-owner can still file | Yes | Yes |
If you noticed the last row, you saw that nobody lost the right to file. What changed is everything that happens after the filing.
The new process comes from the Partition of Real Property Act (Code of Civil Procedure sections 874.311 through 874.323). It applies to partition cases filed on or after January 1, 2023, when co-owners hold title as tenants in common and have no written agreement about what to do with Mom's house. That's what happens without a written plan.
So what happens?
The court's first step is to determine the value of the property. Unless everyone can agree on the same number, the court orders an appraisal from an independent licensed appraiser under section 874.316. This removes a whole level of conflict because nobody has to bargain against a sibling's made-up number anymore.
Once the value is set, the co-owners who didn't ask for the sale may buy out the one who did, at the appraised value times their share. You get 45 days from the court's notice to tell the court you're electing to buy, and then at least another 60 days to actually come up with the money. If two or three of you want to go in on the buyout together, you can split it according to the shares you already own.
You have 45 days from the court's notice to elect to buy out the sibling who filed, then at least 60 more to pay.
Back to Phyllis's house. Say it appraises at $960,000. Janice and Claire can buy Jack's one-third share for $320,000 between them and the house never goes on the market. Jack gets the full appraised value of his share, which is a better outcome for him than the old auctions usually produced, and the house stays in the family.
What if nobody can afford the buyout? Even then, a sale isn't automatic. The court is supposed to prefer physically dividing the property, and the court can order a sale only if dividing it would cause what the statute calls great prejudice (sections 874.318 and 874.319). However, the physical-division part mostly matters for land. You can split forty acres among three siblings, but there's no good way to split a three-bedroom house in Sherman Oaks. For a house, there's a list of factors the court has to weigh before it can order a sale. For example, how long the property has been in the family, whether it holds sentimental or ancestral value, and whether one of the co-owners lives there and would be hurt by losing it. It also looks at who has been paying the property taxes, insurance, and upkeep all these years. No single factor is supposed to decide the case on its own, but if you live in the house and you've been the one covering the tax bill, that's a good argument to take into court.
Living in the house and paying its taxes is now evidence the court is required to weigh.
And even if a sale does get ordered, the default method is a regular listing with a licensed real estate broker, at a price no lower than the appraised value, rather than an auction on the courthouse steps.
If you're hoping to keep the house, there are two practical takeaways. First, 45 days is not very long to arrange a buyout, especially if a refinance is involved, so if a partition filing feels even possible in your family, it's worth talking to a lender about your options before any notice arrives. The sibling who starts learning about loans after the clock starts is at a disadvantage. The second is to keep accurate records, because if you plan to argue that you live in and maintain the house, you'll need to show what you actually paid in taxes, insurance, and upkeep.
And let's say you're the sibling who wants to sell: none of this makes you the bad guy. Often, the person pushing for a sale is just being practical, paying bills on a house they'll never live in while their own family could use the money. The law didn't take away your options. You can still request a sale, and you'll get the appraised value of your share, whether your siblings buy it or the house sells through a broker. What you can't do anymore is force a bargain-basement sale at an auction, which is a bad outcome for everyone, the sibling pushing the sale included.
Now, we'd be remiss if we didn't discuss the root cause of the lawsuit in the first place. A parent left a house to three kids equally, with no instructions. Almost no family chooses that on purpose. It's what happens when a house passes through a simple will, or through no will at all.
Here's where an estate plan can help tremendously. A trust can give the child who lives in the home the option to buy out the others at appraised value, on a timeline that actually allows for financing. Or it can direct that the house be sold and the money divided. Everyone has a clear understanding and nobody has to be the 'bad guy' sibling who suggests selling Mom's house. A trust can even specify that one child gets to keep the house and offset the balance with other assets. The Partition of Real Property Act can be a pretty decent referee, but most families would rather have everything decided before it becomes necessary.
If your family is already in the middle of a partition case, you want a litigator, especially in light of the looming deadlines above. While we don’t litigate here at Laurel Trust Law, we’re always happy to provide referrals. If you’re interested in ensuring your family avoids this messy outcome, grab a time with us to discuss your situation. If you're a parent reading this and recognizing your own kids in it, it's a far easier talk to have now than having them fight about it later.
When you're ready, we work with clients across California with offices in Studio City and Mission Viejo.