- What is Heirs Property as defined by Florida law?
When it comes to real property held in tenancy in common, disputes between co-tenants can arise, making it necessary to partition the property. Florida’s Uniform Partition of Heirs Property Act (UPHPA) offers a framework for the partition of such property, and it is crucial to understand its provisions if you are dealing with a partition action.
Effective July 1, 2020, the UPHPA was enacted under Part II of Chapter 64, Fla. Stat. (Partition of property) as §§ 64.201 to 64.214, Fla. Stat. The Act defines “heirs property” as property held in tenancy in common that satisfies specific requirements. These requirements include that no record agreement governs the partition of the property, one or more of the cotenants acquired title from a relative (whether living or deceased), and at least 20% of the cotenants are relatives.
The UPHPA offers two options for partitioning heirs property: partition by sale and partition in kind. Partition by sale means a court-ordered sale of the entire property, while partition in kind means the division of the property into physically distinct and separately titled parcels.
- The Co-Tenant Buy Out
It is important to note that the UPHPA provides for a buyout option as well. If all co-tenants agree in a record, a co-tenant can buy out the interests of their fellow co-tenants. This provision can be a cost-effective and practical way for co-tenants to resolve their disputes without having to resort to a partition by sale or partition in kind.
Florida statute chapter 64 explains the buyout procedure in a Partition:
64.207. Cotenant buyout
(1) If any cotenant requested partition by sale, after the determination of value under s. 64.206, the court shall send notice to the parties that any cotenant except a cotenant that requested partition by sale may buy all the interests of the cotenants that requested partition by sale.
(2) Not later than 45 days after the notice is sent under subsection (1), any cotenant, except a cotenant that requested partition by sale, may give notice to the court that it elects to buy all the interests of the cotenants that requested partition by sale.
(3) The purchase price for each of the interests of a cotenant that requested partition by sale is the value of the entire parcel determined under s. 64.206 multiplied by the cotenant’s fractional ownership of the entire parcel.
(4) After expiration of the period in subsection (2), the following rules apply:
(a) If only one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall notify all the parties of that fact.
(b) If more than one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall allocate the right to buy those interests among the electing cotenants based on each electing cotenant’s existing fractional ownership of the entire parcel divided by the total existing fractional ownership of all cotenants electing to buy and send notice to all the parties of that fact and of the price to be paid by each electing cotenant.
(c) If no cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall send notice to all the parties of that fact and resolve the partition action under s. 64.208(1) and (2).
(5) If the court sends notice to the parties under paragraph (4)(a) or paragraph (4)(b), the court shall set a date, not sooner than 60 days after the date the notice was sent, by which electing cotenants must pay their apportioned price into the court. After this date, the following rules apply:
(a) If all electing cotenants timely pay their apportioned price into the court, the court shall issue a judgment of partition reallocating all the interests of the cotenants, disburse the amounts held by the court to the persons entitled to them, and direct the clerk of the court to record the judgment in the official records of the county where the property is located.
(b) If no electing cotenant timely pays its apportioned price, the court shall resolve the partition action under s. 64.208(1) and (2) as if the interests of the cotenants that requested partition by sale were not purchased.
(c) If one or more but not all of the electing cotenants fail to pay their apportioned price on time, the court shall give notice to the electing cotenants that paid their apportioned price of the interest remaining and the price for all that interest.
(6) Not later than 20 days after the court gives notice pursuant to paragraph (5)(c), any cotenant that paid may elect to purchase all of the remaining interest by paying the entire price into the court. After the 20-day period, the following rules apply:
(a) If only one cotenant pays the entire price for the remaining interest, the court shall issue a judgment of partition reallocating the remaining interest to that cotenant and reallocating the interests of all of the cotenants. The court shall also disburse the amounts held by the court to the persons entitled to them and direct the clerk of the court to record such judgment in the official records of the county where the property is located.
(b) If no cotenant pays the entire price for the remaining interest, the court shall resolve the partition action under s. 64.208(1) and (2) as if the interests of the cotenants that requested partition by sale were not purchased.
(c) If more than one cotenant pays the entire price for the remaining interest, the court shall reapportion the remaining interest among those paying cotenants, based on each paying cotenant’s original fractional ownership of the entire parcel divided by the total original fractional ownership of all cotenants that paid the entire price for the remaining interest. The court shall issue promptly a judgment of partition reallocating all of the cotenants’ interests, disburse the amounts held by the court to the persons entitled to them, promptly refund any excess payment held by the court, and direct the clerk of the court to record the judgment in the official records of the county where the property is located.
(7) Not later than 45 days after the court sends notice to the parties pursuant to subsection (1), any cotenant entitled to buy an interest under this section may request the court to authorize the sale as part of the pending action of the interests of cotenants named as defendants and served with the complaint but that did not appear in the action.
(8) If the court receives a timely request under subsection (7), the court, after hearing, may deny the request or authorize the requested additional sale on such terms as the court determines are fair and reasonable, provided the court ensures the due process rights of the nonappearing cotenants, subject to the following limitations:
(a) A sale authorized under this subsection may occur only after the purchase prices for all interests subject to sale under subsections (1) through (6) have been paid into court and those interests have been reallocated among the cotenants as provided in those subsections.
(b) The purchase price for the interest of a nonappearing cotenant is based on the court’s determination of value under s. 64.206.
The Uniform Partition of Heirs Property Act provides a way for co-owners of a property to divide it if there is no agreement in place on how to do so. If one co-owner requests a partition by sale, the other co-owners have the option to buy them out. Here are the steps for the buyout process:
- The court will send notice to all parties that any co-owner, except for the one requesting partition by sale, may buy all the interests of the co-owners that requested partition by sale.
- Not later than 45 days after the notice is sent, any co-owner except for the one requesting partition by sale, may give notice to the court that they want to buy all the interests of the co-owners that requested partition by sale.
- The purchase price for each interest of a co-owner that requested partition by sale is the value of the entire property multiplied by their fractional ownership.
- If only one co-owner elects to buy all the interests of the co-owners that requested partition by sale, the court will notify all parties. If more than one co-owner elects to buy, the court will allocate the right to buy based on their existing fractional ownership.
- After the notice period ends, if all electing co-owners pay their apportioned price into the court, the court will issue a judgment of partition and disburse the amounts held by the court to the appropriate parties. If no one pays or only some pay, the court will give notice to those who paid and they may elect to buy the remaining interest.
For example, consider a family who inherited a property from their parents. One sibling wants to sell the property, but the others would like to keep it. The court sends notice to all the siblings that the one sibling wants to partition by sale. Within 45 days, the other siblings decide they want to buy out the sibling who wants to sell. The court determines the value of the property and the buyout price for the sibling who wants to sell. If all the other siblings pay their apportioned price into the court, the court issues a judgment of partition, and the property is divided among the siblings accordingly.
However, if a buyout does not occur, the UPHPA provides for a fair distribution of the proceeds from the sale of the property among the co-tenants. The proceeds are allocated based on the ownership interests of each co-tenant, as well as any credits or debits that may arise from expenses incurred during the sale.
If you are dealing with a partition action, it is crucial to seek legal guidance from experienced attorneys. At Zoecklein Law we have extensive experience litigating partition actions throughout the state of Florida and can provide valuable legal guidance to protect your rights and interests. Contact us for a consultation today to understand how the we can help you with your partition action.
-Brice Zoecklein, Esq.
Disclaimer: The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice. This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.
