Boxler

LEG Investments (LEG) owns a 50 percent undivided interest in a vacation home at Lake Tahoe as cotenant with Thomas F. and Donalee Boxler (the Boxlers). After disputes arose between the cotenants and LEG unsuccessfully tried to sell its interest, LEG sought a partition by sale. The trial court determined the right of first refusal in the tenancy in common (TIC) agreement waived the right to partition. The court denied LEG’S motion for summary judgment or summary adjudication on the right to partition, and granted the Boxlers’ motion for summary adjudication on the affirmative defenses of express and implied waiver and on the cause of action in their cross-complaint for a judicial declaration that the owners of the property had waived the right to partition. The court also awarded the Boxlers $86,955 in attorney fees based on the attorney fee provision in the TIC agreement.

LEG appeals, contending the trial court erred in granting summary adjudication as to the affirmative defenses of waiver. LEG contends the right of first refusal in the TIC agreement is not an absolute waiver of the right to partition, but requires only that the selling cotenant first comply with the…