Nature of the Case
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Facts
Bumpass and Boxler (D) purchased property. Each couple owned a 50 percent undivided interest as cotenants. Bumpass and Boxler (D) purchased property. Each couple owned a 50 percent undivided interest as cotenants. Bumpasses transferred their interest to Schwerdtfeger. The Schwerdtfeger and the Boxlers entered into the TIC agreement “to establish their rights and duties with respect to each other as tenants in common.” The agreement provided for a right of first refusal if an owner wanted to sell his or her interest. The term of the TIC agreement was for 30 years from execution with automatic five-year extensions until termination was agreed to by the owners. The agreement was binding upon and to inure to the benefit of the parties hereto, their heirs, devisees, transferees, executors, administrators, successors, assigns, and all other persons hereafter holding an Interest in the Property. The covenants herein shall be deemed to run with the land, both as to benefit and burden.” The agreement was recorded in Placer County. In 1998, P purchased the Schwerdtfeger interest in the Property. P is a general partnership. In 2003, P offered to sell its interest in the Property or purchase Ds’ interest for $750,000. D declined both offers. In 2005, C.R. Gibb offered to purchase P’s interest for $1.4 million, subject to his approval of D as co-owners. P offered D a right of first refusal to purchase on the same terms. D declined. Gibb determined that D were unwilling to contribute to renovations and repairs. Gibb would not approve D as co-owners and withdrew his offer to purchase. P demanded that D agree to list the Property for sale or purchase P’s interest. If not, P would file an action for partition by sale. P filed a complaint for partition by sale. The second cause of action sought injunctive relief to prevent waste due to D's refusal to pay for reasonable and necessary maintenance, repairs, expenses, and improvements. D cited four defenses: failure to state a cause of action; express contractual waiver of the right to partition; implied waiver of the right to partition; and unfairness. D filed a cross-complaint seeking a judicial determination whether P could compel a judicial decree sale of the entire Property or whether the owners of the Property had waived the right to force a sale by judicial decree. They also sought specific performance of the TIC agreement, that prior to any sale or transfer of its interest, P obtain a valid, good faith offer for acquisition of P’s interest and present it to D pursuant to their right to acquire P’s interest on substantially similar terms. P's main argument was that the relationship between P and D had so deteriorated that partition was the only remedy. D moved for summary adjudication of issues, contending there was no defense to their affirmative defenses of waiver or the first cause of action of the cross-complaint for declaratory relief. P provided evidence that D had been abusive to the prior owners, the Schwerdtfegers when his authority was challenged. After D refused to buy the Schwerdtfegers’ interest for what they had paid for it, the Schwerdtfegers listed it for sale. D refused to cooperate; D even threatened to shoot a realtor. A potential sale fell through when the purchaser refused to approve D as co-owners. During the sale to P, D demanded the Schwerdtfegers return their personal property to the Property and extracted $15,000 from the Schwerdtfegers to close escrow. A realtor with 17 years’ experience in the Lake Tahoe area declared d “is the most difficult property owner I have ever encountered in my real estate career.” The Schwerdtfegers and their attorney, who drafted the agreement, did not intend the right of first refusal to waive the right to partition. The trial court denied P’s motion for summary adjudication on the first cause of action for a partition sale. The court found the right of first refusal waived the statutory right to partition and granted Ds’ motion for summary adjudication of their second and third affirmative defenses of waiver and the first cause of action of the cross-complaint for declaratory relief. The parties agreed to dismiss their complaints and D moved for attorney fees. The court awarded them $86,955 in fees. P appealed from this ruling.
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