Partition & Co-Ownership  ·  October 8, 2026

Can California Co-Owners Agree Not to Force a Sale?

The short answer

Yes — the right to partition can be waived, and the statute presupposes it. Code of Civil Procedure section 872.710, subdivision (b), provides that partition as to concurrent interests "shall be as of right unless barred by a valid waiver." What makes a waiver valid is the hard part, and the statute does not say.

But there is a second consequence that does not require a waiver at all. The Partition of Real Property Act — the statute that gives a cotenant the right to buy out the co-owner who wants to sell, rather than lose the property at auction — applies only where there is no agreement in a record binding all the cotenants which governs the partition of the property (Code Civ. Proc., § 874.311, subd. (b)).

Those are two different tests. An agreement can fall short of waiving partition and still be an agreement that governs it. If that reading is right, a co-ownership agreement drafted to keep the peace could remove the property from the Act's buyout protections while leaving the right to force a sale fully intact — an outcome no one at the signing table intended.

We should say at the outset that this is a reading of the statutory text, not a settled rule, and we set out below how unsettled it is. It is a risk to plan around, not a prediction.

This is the question to put to a lawyer before you sign a tenancy-in-common agreement, not after someone files.

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Can California co-owners waive the right to partition?

Three subdivisions of section 872.710, and the distinctions matter.

Subdivision (a): At the trial, the court shall determine whether the plaintiff has the right to partition.

Subdivision (b): Except as provided in section 872.730, partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.

Subdivision (c): Partition as to successive estates shall be allowed if it is in the best interest of all the parties. The court shall consider whether the possessory interest has become unduly burdensome by reason of taxes or other charges, the expense of ordinary or extraordinary repairs, the character of the property and changes in it since the estates were created, the circumstances under which the estates were created and changes in those circumstances, and all other factors a court of equity would consider, bearing in mind the intent of the creator of the successive estates and the interests and needs of the successive owners.

The section was added by Stats. 1976, ch. 73, as part of the partition title.

Two things follow. First, concurrent interests — your ordinary tenancy in common — get partition as of right; successive estates (a life estate followed by a remainder, for instance) get a discretionary, multi-factor test. The two are governed by different standards. Second, the cross-reference in subdivision (b) is to section 872.730, which concerns applying the partition provisions to a partnership accounting or dissolution, or to an action to partition partnership property, where the court finds that remedy suitable and where the rights of the partnership's unsecured creditors will not be prejudiced. It is not a general exception to the right of partition.

So on the statute's own terms, for ordinary cotenants, waiver is the defense the statute names — subject to the narrow section 872.730 provision, and subject to the separate question, taken up below, of whether the Partition of Real Property Act applies at all.

Must a waiver be express, or can it be implied?

California courts consider both express and implied waiver. The leading case is a cautionary one, because the owners asserting the waiver lost.

In LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, property was held under a tenancy-in-common agreement with a 30-year term and automatic five-year extensions, containing a right of first refusal at paragraph 6.1 along with a prevailing-party attorney fee clause and an integration clause. When one cotenant sought partition by sale, the opposing owners argued the agreement had waived the right.

The Court of Appeal rejected both branches of the argument:

• No express waiver. The court observed that the TIC agreement "does not mention either partition or waiver," and held the trial court erred in granting summary adjudication on express waiver. An agreement cannot expressly waive something it never names.
• No permanent implied waiver. The court found that the right of first refusal modified the statutory right to partition rather than permanently waiving it for the agreement's term. A cotenant must first comply with paragraph 6.1 before seeking partition — but having done so, may proceed.

The outcome followed: the judgment and the attorney fee award were reversed, and the trial court was directed to vacate its summary adjudication orders, grant the partitioning cotenant summary adjudication on the partition-by-sale claim, deny the opposing motion, and enter an interlocutory judgment for partition by sale.

Three lessons that transfer directly to drafting.

First, a right of first refusal is not a waiver. If you negotiated a ROFR believing it locked your co-owner in, LEG Investments says otherwise. It buys you a procedural step, not permanence.

Second, if you want a waiver, name it. The agreement in LEG Investments ran thirty years and still failed because it never used the words. An implied waiver is a litigation argument, not a plan — argued after the dispute starts, expensive to establish, and read against the party asserting it.

Third, note the verb the court chose, because it illustrates a distinction the Act's scope provision also turns on — though, as the next section explains, the court was not construing that provision. A right of first refusal modifies the statutory right to partition.

A waiver drafted without a time limit invites a further fight — whether a perpetual restraint on a co-owner's ability to exit is enforceable at all. That question was not reached in LEG Investments: the court resolved the case by construing the right of first refusal as a modification rather than a perpetual waiver, so it never had to decide whether a perpetual waiver would be enforceable.

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Does a co-ownership agreement turn off the Partition of Real Property Act?

Here is the part that gets missed.

Code of Civil Procedure section 874.311 sets the Partition of Real Property Act's scope:

• (a) Names the Act.
• (b) The Act applies to real property held in tenancy in common where there is no agreement in a record binding all the cotenants which governs the partition of the property.
• (c) The Act applies to actions for partition of real property filed on or after January 1, 2023.

Read subdivision (b) slowly. The disqualifying condition is not "a waiver." It is an agreement in a record binding all the cotenants which governs the partition of the property.

Note how little "in a record" demands. Section 874.312, subdivision (d), defines a record as information inscribed on a tangible medium, or stored in an electronic or other medium and retrievable in perceivable form. That is broader than a signed writing.

Those words do different work than section 872.710(b) does:

This table compares what each provision reaches. It is not a test you can apply to your own agreement — whether a particular clause is a "valid waiver," or an agreement that "governs the partition," turns on the document's actual language. The two columns are also not equally settled: the left column has published authority behind it, and as of October 8, 2026 no published California decision has construed the right-hand provision at all.

A tenancy-in-common agreement that says "if any owner wishes to sell, the others shall have 90 days from receipt of that notice to purchase at appraised value, failing which the property shall be listed" does not waive anything. Every owner retains the ability to force an exit. But it is in a record, it binds all the cotenants, and it arguably governs how a partition of the property would proceed. The contrary argument is available too: a clause triggered by an owner's wish to sell is a buy-sell provision, not a partition provision, and a court could read subdivision (b) to reach only agreements directed at partition itself. Which reading prevails is unresolved.

This is where LEG Investments becomes more than a drafting lesson. The court there held that a right of first refusal modified the statutory right to partition — a cotenant had to comply with it before seeking partition, but was not barred. That is, by its own description, an agreement that governs partition without waiving it.

Two cautions about leaning on that. LEG Investments was decided in 2010, more than a decade before the Act existed, and the court was construing section 872.710(b)'s waiver language, not section 874.311(b)'s scope language — which did not yet exist. Its choice of the verb "modified" is a useful way to see the distinction; it is not authority on what "governs the partition of the property" means.

So the same clause could, on this reading, lose on waiver under section 872.710(b) and still defeat the Act's application under section 874.311(b). If a court accepted that reading, the co-owner resisting a sale would have neither the contractual protection they thought they had nor the statutory buyout they would have had without the agreement. No court has yet been asked.

If that is an agreement within subdivision (b), the Act does not apply — and the cotenants have contracted out of the statutory appraisal process, the 45-day buyout election (45 days from the date the court sends notice of the buyout right, which the court sends only after it has determined value, though the statute sets no deadline for sending it), and the open-market sale protections, replacing them with whatever their own clause says.

Sometimes that is exactly what sophisticated co-owners want. A carefully drafted buy-sell can beat the statutory default. The problem is the agreement drafted by people who had never heard of the Act, which displaces it by accident.

If you already have an agreement, do not start redlining it on the strength of this article. Reopening a co-ownership agreement puts every term back in play, requires everyone's signature, and in a relationship that is already strained can be the thing that starts the fight. The first step is to have someone read the document you have and tell you what it actually does — not to replace it.

How settled is this? Not very, and we will not pretend otherwise. As of October 8, 2026, no published California appellate decision has construed the Partition of Real Property Act, or its predecessor the Uniform Partition of Heirs Property Act, including subdivision (b)'s scope language. The Act does not address whether a cotenant may argue an implied waiver based on conduct, prior oral agreements or estoppel, and we have found no legislative history or case law resolving it. What we set out above is a reading of the statutory text, offered as a risk to plan around — not a prediction of how a court will rule.

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What should a California co-ownership agreement say?

If you are buying property with a sibling, a friend, a business partner or an unmarried partner, the agreement is worth more than the title vesting choice. The clauses that matter when the relationship deteriorates:

• Whether partition is waived at all — and if so, expressly, with a defined duration or triggering event rather than forever.
• Whether you intend the Partition of Real Property Act to apply. Decide this deliberately. Say so in the document. An agreement silent on the Act may displace it anyway.
• A valuation method. Who appraises, how appraisers are selected, how a split decision resolves, and whether discounts for fractional interests apply. Unspecified "fair market value" is one of the most expensive phrases in these agreements.
• An exit mechanism with real deadlines — a right of first refusal or buy-sell, with the clock stated and a stated start date for it.
• Funding deadlines and what happens on failure to fund. An election that cannot be funded is a common way a negotiated exit collapses back into litigation.
• Expense-sharing and the accounting. Who pays taxes, insurance, mortgage, capital repairs, and how those are credited on exit.
• Occupancy. If one owner will live there, say so, and say whether they pay rent or occupancy value to the others. Silence here is what produces ouster disputes later.
• Death and incapacity. What happens to a co-owner's interest, and whether the survivors can buy it.

A note on form: these agreements are often unrecorded, which raises a separate question about whether a later successor to a co-owner's interest is bound. That is worth addressing with counsel for the specific deal rather than assumed.

If a dispute has already started

Then the sequencing question is different, and three things are worth knowing.

A co-owner's right to force an exit is strong. Under section 872.710(b) it is as of right for concurrent interests, and the plaintiff does not have to prove the other owner behaved badly. The defenses are narrow, and on the statute's text waiver is the principal one.

If the Act applies, the co-owner who does not want a sale has a real option — buying out the interest of the one who does, rather than losing the property at auction. We cover that process, including valuation and the 45-day election that runs from the court's notice of the buyout right, in our article on the cotenant buyout right under the Partition of Real Property Act.

If one owner is living in the property and the other is shut out, that is a separate claim with its own statutory procedure and its own 60-day clock. See what to do when a co-owner will not leave the house. And if the property is held in an entity rather than directly, partition may not be available at all — see when the LLC owns the property. If it is rented, the tenancy is its own question — see does a tenant's lease survive a partition sale.

Our partition and quiet title practice handles co-ownership disputes and the agreements meant to prevent them. The time to think about the agreement is before there is a dispute to resolve.

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Common questions

This article is general information about California law, not legal advice, and reading it does not create an attorney-client relationship. Statutes and case law change, and how they apply depends on the specific facts. Attorney advertising. Prior results do not guarantee similar outcomes. Robert B. Mobasseri, State Bar No. 193193, ROMO Law Group, Encino, California.