If you own property with another person (who is not your spouse) either through a joint venture, a relationship that went sour or through inheritance, Florida law gives you the right to force the Property to be sold via a Partition Action. Florida law has a long history of recognizing a fundamental right of a Property owner to sue for Partition. It is unfair for someone to be locked into a Property without their consent.
HOW DOES THE PARTITION PROCESS WORK IN FLORIDA?
Partitions are litigated cases where a lawsuit is filed to force the sale or division of Property. The Court will determine whether the Property should be sold or divided and whether the sale occurs at a Public or Private sale. Further in some cases, where the Property is determined to be “heirs property” meaning acquired by family at the same time (typically via inheritance) then the Court must also have a determination of value and allow each party the opportunity to buy out the Property at the determined value. The cases are brought in the county in Florida where the real property is located. Fla. Stat. 64.022.
Most partitions in Florida deal with Property that is not divisible (like a single family home). Sometimes that is not the case and land can be divided. This is called a Partition in Kind. Most cases involve a Partition by sale where the Property is sold.
Florida Statutes Chapter 64 cover partition actions. Some of the more relevant provisions are below:
64.041 Complaint. — The complaint shall allege a description of the lands of which partition is demanded, the names and places of residence of the owners, joint tenants, tenants in common, coparceners, or other persons interested in the lands according to the best knowledge and belief of plaintiff, the quantity held by each, and such other matters, if any, as are necessary to enable the court to adjudicate the rights and interests of the party. If the names, residence or quantity of interest of any owner or claimant is unknown to plaintiff, this shall be stated. If the name is unknown, the action may proceed as though such unknown persons were named in the complaint.
64.051 Judgment.— The court shall adjudge the rights and interests of the parties, and that partition be made if it appears that the parties are entitled to it. When the rights and interests of plaintiffs are established or are undisputed, the court may order partition to be made, and the interest of plaintiffs and such of the defendants as have established their interest to be allotted to them, leaving for future adjustment in the same action the interest of any other defendants.
WHAT ARE MY OPTIONS IN DEALING WITH A PARTITION CASE:
The best option to resolve a case is settlement. Our office litigates Partitions throughout the State of Florida and if the parties can come to a resolution of the division then settlement is the best option. A second option is a buyout where one owner buys the other out for an appraised or agreed value with our without financing and subject to offsets for expenses. Finally if those options are exhausted then the Property can either be divided (if possible) or sold at either a Private or Public sale.
ATTORNEY FEES AND COSTS IN A FLORIDA PARTITION ACTION:
Attorney fees and costs are awarded by statute in a Florida Partition action and are paid from the sale. This means for practical purposes that each side only pays their proportional share of the attorney fees. This is codified in Fla. Stat. 64.081 which provides:
64.081 Costs; taxes; attorneys’ fees.—Every party shall be bound by the judgment to pay a share of the costs, including attorneys’ fees to plaintiff’s or defendant’s attorneys or to each of them commensurate with their services rendered and of benefit to the partition, to be determined on equitable principles in proportion to the party’s interest. Such judgment is binding on all his or her goods and chattels, lands, or tenements. In case of sale the court may order the costs and fees to be paid or retained out of the moneys arising from the sale and due to the parties who ought to pay the same. All taxes, state, county, and municipal, due thereon at the time of the sale, shall be paid out of the purchase money.
GET EXPERT ADVICE ON FLORIDA PARTITIONS FROM OUR EXPERIENCED ATTORNEYS
Call our office for a free consultation if you are stuck in a Property or dealing with a Partition action that has been filed. We can help you make sure you understand your rights to ensure that you receive what your owed.
Interested in learning more? See the below articles from our blog regarding Partition Actions