DAVID B. NEMER, JR. (No. 66975)

44 Montgomery Street, Suite 2500

San Francisco, California 94104

Telephone No. (415) 391-1070

Facsimile No. (415) 869-6644

Attorney for Plaintiff PAULA SMITH,

as Administrator of the Estate of

Nadia Manheim, Deceased

SUPERIOR COURT OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO

UNLIMITED JURISDICTION

Plaintiff PAULA SMITH, as Administrator of the Estate of Nadia Manheim, Deceased, alleges:

1. The subject of this action is the real property (hereinafter referred to as "Real Property") located in the City and County of San Francisco, State of California, commonly known as 649-651 Kansas Street, San Francisco, California, and more particularly described as follows:

2. Plaintiff does not know the true names of the defendants sued herein as Does 1 to 100, inclusive.

3. NADIA Manheim, deceased, is the owner of an undivided one-half (½) fee simple interest as a tenant in common in the Real Property.

4. Plaintiff is the duly-appointed, qualified, and acting Administrator of the Estate of Nadia Manheim, Deceased, in the Matter of the Estate of Nadia Manheim, Deceased, Contra Costa County Probate No. P04-00000

5. Defendant WILLIAM JONES is the owner of an undivided one-half (½) fee simple interest as a tenant in common in the Real Property.

6. Defendants ROBERT D. FOREST and JANET TREES are the owners of a $130,000.00 face value promissory note secured by deed of trust, dated November 20, 1998, against the undivided one-half (½) interest in the Real Property of Defendant WILLIAM JONES.

7. Defendant CHASE MANHATTAN BANK, USA, N.A., is the owner of a $10,647.57 face value judgment lien, dated July 8, 2002, against the undivided one-half (½) interest in the Real Property of Defendant WILLIAM JONES.

8. Defendant BANK OF AMERICA CORPORATION is the owner of a $2,403.91 face value judgment lien, dated August 31, 2004, against the undivided one-half (½) interest in the Real Property of Defendant WILLIAM JONES.

9. Plaintiff names as defendants in this action all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the Real Property. The claim of each such unknown defendant is without any right, and these defendants have no right, title, estate, lien, or interest in the Real Property, or any part of it.

10. Plaintiff seeks partition of the entire fee simple interest in the Real Property.

11. Plaintiff requests that the Real Property be partitioned by sale. Such mode of partition is more equitable in the circumstances than partition by physical division for the reason that the Real Property consists of a single building which is not susceptible to physical division.

12. Plaintiff intends to obtain a title report on the Real Property in the form of a Litigation Guarantee, at an expense to Plaintiff in an amount not yet ascertained. Said Litigation Guarantee, when obtained, will be kept at the offices of DAVID B. NEMER, JR., Attorney at Law, 44 Montgomery Street, Suite 2500, San Francisco, California 94104, for inspection, use and copying by the parties to this action.

13. Plaintiff has spent considerable sums of money in maintaining and preserving the Real Property for the benefit of both Plaintiff and Defendants, and each of them, in an amount according to proof, but at least the sum of $10,000, with interest at the rate of ten (10%) percent per annum from the date of each expenditure. Plaintiff is entitled to judgment against each Defendant for his or her respective share of sums reasonably spent, which judgment shall be secured by an equitable lien against the partition sale proceeds and/or against the interests of Defendants, and each of them.

WHEREFORE, Plaintiff PAULA SMITH, as Administrator of the Estate of Nadia Manheim, Deceased, prays:

A. For judgment partitioning the Real Property by sale and dividing the proceeds;

B. For judgment against defendants, and each of them, for their respective prorata shares of the expense of the Litigation Guarantee, together with interest at the rate of ten (10%) percent per annum from the date of filing of the complaint, and for their respective prorata shares of other costs of partition, including but not limited to reasonable attorney's fees, as deter­mined by the Court, which judgment shall be secured by a lien on the respective interests of defendants, and each of them, in the Real Property or proceeds of sale of the Real Property;

C. For judgment against defendants, and each of them, for their respective prorata shares of the sums of money in expended by Plaintiff in maintaining and preserving the Real Property for the benefit of both Plaintiff and Defendants, and each of them, in an amount according to proof, but at least the sum of $10,000, together with interest at the rate of ten (10%) percent per annum from the date of each expenditure by Plaintiff, which judgment shall be secured by a lien on the respective interests of defendants, and each of them, in the Real Property or proceeds of sale of the Real Property;

D. For costs of suit; and

E. For such other and further relief as the Court considers proper.

Dated: .

________________________________

DAVID B. NEMER, JR.

  Attorney for Plaintiff PAULA SMITH

as Administrator of the Estate of Nadia Manheim, Deceased

VERIFICATION

I, the undersigned, state:

I am the plaintiff in the above-captioned matter. I have read the foregoing Complaint for Partition of Real Property and know the contents thereof; the same is true of my own knowledge, except as to those matters which are therein stated upon information and belief, and as to those matters I believe it to be true.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Dated: January 25, 2007.

_______________________________

PAULA SMITH, as Administrator of the

Estate of Nadia Manheim, Deceased

Mr.David Nemer kindly provided the example below of a complaint for partition of real property by sale.  This case is described in the example entitled "Double Trouble - Inheriting a Duplex" which can be seen here.  As in most partition cases, the co-owners are tenants in common.  In this instance, the defendant acquired his interest by purchasing inherited tenancy in common interests from the plaintiff's cousins.  The defendant moved into one of the floors of the over-under duplex and lived there on the presumption that he, in effect, owned that floor.  Of course, that is completely contrary to the notion of a tenancy-in-common. 

Note that every person or entity that has an interest in the property has to be named as a defendant.  Those interests are ascertained from a preliminary title report obtained prior to filing the complaint. It is essential to work closely with a title company from the very onset especially because the litigation guarantee, which is a form of title insurance, is required.  Note that the property description must be included in the complaint.

Another interesting aspect of this particular litigation is that the plaintiff sued in her capacity as administrator of the estate of her mother.  This was necessary because at the time the suit was filed, the probate of her mother's estate was still ongoing.

COMPLAINT FOR PARTITION OF REAL PROPERTY BY SALE

PAULA SMITH, as Administrator No. CGC-

of the Estate of Nadia Manheim, Deceased,

Plaintiff,

v.

WILLIAM JONES; ROBERT D. FOREST;

JANET TREES; CHASE MANHATTAN BANK, USA, NA; BANK OF AMERICA CORPORATION; all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint; and DOES 1 to 100, inclusinve

Defendants.

COMPLAINT FOR PARTITION OF REAL PROPERTY

Beginning at a point on the Easterly line of Kansas Street, distant thereon 185 feet Northerly from the Northerly line of Nineteenth Street; running thence Northerly and along said Easterly line of Kansas Street 31 feet and 8 inches; thence at a right angle Easterly 100 feet; thence at a right angle Southerly 31 feet and 8 inches; thence at a right angle Westerly 100 feet to the point of beginning.

Being a part of Potrero Nuevo Block No. 140.

Commonly known as 649-651 Kansas Street, San Francisco, California.

Assessor's Parcel No. Block 4030, Lot 022.

CASE NO. 456987

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