Sullivan

The primary question presented by this appeal is whether a court presiding over an action to partition real property has the power to award a brokerage commission on an unconsummated sale of the property. We have concluded that such an award is precluded by provisions of the Probate Code expressly made applicable to partition actions. We therefore reverse an order allowing a commission on a sale that was neither confirmed nor consummated. We affirm orders allowing fees to the erstwhile attorneys for the partition referee.

Background

This proceeding concerns approximately 16 acres of land on Highway 101 in Morgan Hill known as the Cochran Road Ranch. Members of the Sullivan and Dorsa/Benassi families apparently purchased this property in 1967. It is now held in undivided interests by their descendants and successors, including several trustees for family trusts (the owners).

In 1997, the owners sold a nearby parcel for $10.50 per square foot. In December 1999, some but not all of the owners agreed to sell the present parcel to AG Industries for $10 per square foot. They apparently also agreed that if fewer than all owners joined in the sale, those who had agreed to do…