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Actions To Divide Up Jointly Owned Real Property
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When examining the issues related to a partition lawsuit, it is important to understand that Florida real estate ownership is carefully protected not only by statutes passed in Tallahassee but also by various Florida appellate court opinions as well as by rules and regulations of local government (zoning, recording of deeds, etc.). Florida law is written to protect our real estate for both today’s needs and tomorrow’s purposes.
So, when two or more people own Florida real estate, and they can’t agree on how that property should be used or sold, their disagreement is not just between them – Florida law has a say so on how the dispute can be settled. In Florida, joint owners of real estate can resolve their differences by opting to file a “partition action.
“Partition lawsuits happen often in Florida. For example, a couple who lives together but isn’t legally married may need a judge to force the sale of the condo they bought together because they have unexpectedly ended their relationship. Or kids inherit property jointly, like waterfront property, and they want to separate the ownership or force one heir to sell; they may need a judge to make that happen: Another example: is business partners who want to end their partnership and split up their assets: oftentimes they’ll have to file a lawsuit because they can’t agree on the value of the real estate. These are all common examples of when a partition action may be appropriate.”
– Larry Tolchinsky
In Florida, partitioning property must comply with laws passed by the Florida legislature and organized in the Florida Statutes under Chapter 64 of the Florida Civil Practice and Procedures Code. The good news is, for the most part, that this law is not affected by Florida’s homestead law.
Read: Partition of Florida Homestead Property (From Our Blog)
What is a Partition Action in Florida?
Partition actions are lawsuits that must be filed in the county courthouse where the real estate is located; inconveniencing an owner who is many miles away from the property is seen as less important to Florida lawmakers than having the lawsuit over the property being heard in the county where the land exists and where the real property public records are maintained.
Under Florida law, the venue of all Florida partition lawsuits must be in the county of the property in dispute. (Florida Statute §64.022) If the property overlaps two or more county lines, then the parties have a choice in which court to file the case.
The purpose and goal of a partition lawsuit are to divide up the property: the joint owners (who can be joint tenants or tenants in common) are the parties to the lawsuit, owner against the owner in a dispute to be resolved by the judge. One or more joint owners file the lawsuit against the others. The formal legal process is followed: a complaint is filed, an answer is served, discovery is conducted and a trial date is set (rarely does a case go to trial – most partition lawsuits are settled).
Sometimes the partition action is filed in tandem with other legal proceedings, such as a divorce proceeding where husband and wife are joint owners of Florida real estate; estate proceedings where it is deemed necessary to file a partition action for Heirs and Estate beneficiaries; or a business dispute where real estate is part of the property that is part of the controversy of that case. Those underlying cases may be filed in another county in Florida, or even in another state or another country.
Quick Legal Tip: A judge can partition a Florida Condominium and force the sale of the property.
What Is The End Result Of A Florida Partition Action?
Florida partition lawsuits are usually filed when the joint owners haven’t been able to agree on the best way to deal with the real estate, including how to value the property or how to split the income or expenses related to keeping the property.
The end result of a partition action, unless the parties agree to settle, is to sell the property by order of the court and then have the sale proceeds split among the joint owners who are parties to the partition case (the court will order an allocation of the sale proceeds based upon many factors, including which party has spent the money to upkeep the property). The court can also partition or divide up the real estate into sections that are then awarded as the separate property of each owner (without joint ownership – this only happens with the real estate is a raw piece of land).
- When will the partition action result in a sale of the property instead of dividing up the land between the joint owners?
When there are improvements on the property like a house, or any kind of income-producing improvements like apartment buildings or office buildings, the court will order the property sold and the proceeds divided among the parties to the partition action.
- What about income and expenses?
Usually, each joint owner will be held legally responsible for his or her proportionate share of the expenses (property taxes, insurance, etc.). If one joint owner has covered more than his fair share, then the court will even things up during the distribution of sales proceeds as a credit. Also, if one owner has been living at the property or has kept all of the rent from a tenant, then that money will also be allocated among the owners.
As for attorneys’ fees, these are covered in the Florida Statutes and they can be paid from the sale proceeds if the attorney contributed to the partition and the sale of the property (when a case settles, each party usually pays their own attorney fees).
4 More Issues Covered by Florida’s Partition Statute
Florida’s real estate partition statute addresses a few other common issues relating to these lawsuits, including:
1 – Jurisdiction – All partition actions are in equity. Meaning, the Judge in a partition lawsuit is not awarding damages but is ordering the sale or division of real property.
2 – Partition Complaint – The complaint must allege a description of the real estate, the name and address of the co-owner, and the amount of ownership of the co-owner being sued.
3 – Commissioners and Special magistrate – When a partition judgment is entered for land, the Judge will appoint 3 commissioners to make the partition. The commissioners have the power to employ a surveyor for the purpose of making a partition and the commissioners are paid for their services.
When there is a home or other structure on the property and there is an uncontested allegation in a pleading that the real estate is indivisible and is not subject to partition without prejudice to the owners the court may appoint a special magistrate or the clerk to make the sale of the property either at private sale. When a magistrate is appointed, he or she hires the real estate agent to sell the property and the magistrate is paid for his or her services.
4 – Costs, Taxes and Attorneys’ Fees – As noted above, if the case proceeds to the point where a partition judgment is entered, every co-owner is required to pay a share of the taxes, fees and costs, including attorneys’ fees, which is “determined on equitable principles in proportion to the party’s interest.”
To read Florida’s Real Estate Partition statute in its entirety, click here.
Also, see (From our real estate blog):
- Can A Heir Force The Sale of Inherited Real Estate?
- Divorce and Partitions
- Real Estate Partitions and Domestic Violence in Florida
- Partition Actions in Florida
Courts and Partition Actions: Past Rulings in Florida Partition Cases Will Control Your Lawsuit
Judges that preside over the Florida partition actions do not operate in a vacuum: their decisions are controlled not only by statute but also by the case precedent (past opinions) in Florida court partition actions. Looking to these past decisions for guidance, a Florida judge may decide that the facts do not allow for a partition even though partition is provided for in the Florida statutes. However, this rarely happens.
In one case, a court ruled that no partition will take place even if the Florida statutes technically allow the partition if that partition request will result in something that will result in “manifest injustice, fraud, or oppression.” Condrey v Condrey, 92 So.2d 423, 426 (Fla. 1957).
In another case, a court ruled that the facts before them demonstrated that the parties had waived their right to partition either by a settlement agreement or otherwise. See, Oakwood Hills Co. v. Horacio Toledo, Inc., 599 So.2d 1374, 1376 (Fla. 3d DCA 1992).
The bottom line is that a partition action is rarely denied by the courts.
What About Out of State Property Owners?
Oftentimes, Florida Partition Actions are pursued by clients who live in another state or a foreign country, which is not a problem since the key to these lawsuits is the location of the property. As long as the property is located in Florida, we can help.
Sample Partition Lawsuit
We have attached a sample partition lawsuit which provides a true sense of the work involved in a Florida partition case.
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Florida Real Estate Lawyer Helping People In Broward County And All Of Florida
Larry Tolchinsky helps property owners with real estate located in Broward County, Miami-Dade County and Palm Beach County, and throughout Florida both in filing and defending Florida partition lawsuits. In fact, a substantial portion of his real estate practice involves partition cases.
Florida real estate lawyer Larry Tolchinsky has 25+ years of experience helping people with their real estate issues, including partition lawsuits. Please feel free to contact Larry today for a free initial consultation.
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