Partition actions in Florida are governed by Chapter 64 of the Florida Statutes. These proceedings are equitable in nature and serve to dissolve concurrent ownership interests in real property when co-owners are unable to agree on the use or disposition of the property. The statutory framework provides for either partition in kind (physical division of the property) or partition by sale, depending on whether the property can be equitably divided without prejudice to the parties.
Statutory Authority and Procedural Requirements
Under section 64.011, Florida Statutes, all partition actions are to be brought in chancery. Jurisdiction lies in the circuit court, and venue is appropriate in any county where part of the subject property is located (section 64.022). A partition action may be brought by any joint tenant, tenant in common, or coparcener against other interested co-owners under section 64.031.
The complaint must include a legal description of the property, the names and addresses of all known parties with an interest, and each party’s claimed percentage interest. If the names or interests of some parties are unknown, the complaint must state this affirmatively, and the action may proceed against unknown persons (section 64.041).
Upon a determination that the plaintiff is entitled to partition, the court adjudicates the respective rights and interests of all parties and enters an interlocutory judgment of partition under section 64.051. If the court determines that physical partition is feasible, it appoints three disinterested commissioners to conduct the division of the property in accordance with section 64.061. The commissioners may employ a surveyor and must report their findings to the court. After review of any objections, the court may confirm the report and enter final judgment, vesting title and possession in the respective co-owners.
Where physical division would result in prejudice to the parties, the court may instead order partition by sale. Under section 64.071, such a sale typically occurs via public auction. The court may authorize financing terms for the sale, but at least one-third of the purchase price must be paid in cash unless all parties agree otherwise. The court must approve the sale and order a conveyance before any transfer of title.
Cost Allocation and Credits
The equitable principles guiding partition extend to the allocation of costs and the distribution of sale proceeds. Under section 64.081, each party is liable for their proportionate share of costs and attorney’s fees. The court may deduct these amounts from the party’s share of the sale proceeds.
Florida courts also recognize that co-tenants have a mutual obligation to share in the expenses associated with the property, including mortgage payments, taxes, insurance, and necessary repairs. A party who pays more than their proportionate share of these costs is entitled to reimbursement through credits applied during the final accounting.
In Biondo v. Powers, 743 So. 2d 161 (Fla. 4th DCA 1999), the court clarified that proceeds must be divided according to the parties’ ownership interests, with credits applied for disproportionate contributions to expenses. The court held that excess payments did not increase a party’s ownership share but did entitle the payor to a credit against the non-paying co-tenant’s portion.
In Fernandez v. Marrero, 282 So. 3d 928 (Fla. 3d DCA 2019), the court distinguished between pre-closing and post-closing expenses. It held that payments made prior to acquiring title were presumptively gifts in the absence of an agreement to reimburse, particularly where the parties were in a romantic relationship. However, the court awarded reimbursement for post-closing mortgage payments, taxes, and insurance because those expenses were incurred after both parties had legal ownership and were obligated to contribute.
The Second DCA followed similar reasoning in Lupo v. Lawson, 301 So. 3d 366 (Fla. 2d DCA 2020), reversing summary judgment in a partition action where one joint tenant alleged disproportionate contributions post-closing, including the down payment and ongoing property expenses. The court emphasized the need for a factual determination of reimbursable expenses prior to allocating net proceeds.
Heirs Property and the Uniform Partition of Heirs Property Act (UPHPA)
Florida adopted the Uniform Partition of Heirs Property Act (UPHPA) in 2020, codified in sections 64.201 through 64.214. The UPHPA governs cases involving “heirs property,” which includes property held in tenancy in common where no governing agreement exists and at least 20 percent of the interests are held by relatives or acquired from relatives.
Once the court determines that the property qualifies as heirs property, it must conduct a formal valuation process (section 64.206). Cotenants who did not request a sale are given the opportunity to purchase the interests of those seeking partition by sale (section 64.207). If no buyout occurs, the court considers whether the property can be divided in kind without prejudice, based on criteria enumerated in section 64.209. If partition in kind is not feasible, the court orders an open-market sale, sealed bid, or auction, in accordance with sections 64.210 and 64.211.
The UPHPA adds an additional layer of procedural safeguards to prevent the involuntary loss of family land and requires courts to consider non-economic factors such as sentimental attachment, long-term possession, and contributions to the property.
Conclusion
Partition actions are a judicial remedy designed to resolve deadlocked ownership disputes among co-owners of real property. Florida law provides for both physical division and sale, depending on the facts of the case. Courts apply equitable principles to ensure fair allocation of costs and sale proceeds, with a particular focus on reimbursable expenses incurred by one co-tenant for the benefit of the whole. The application of the UPHPA in cases involving heirs property further refines this equitable framework by preserving family ownership and granting buyout opportunities before a forced sale. Legal practitioners handling partition cases must be familiar with both statutory provisions and case law to effectively advocate for their clients in the division or disposition of jointly held property.
If you are involved in a dispute over jointly owned real property anywhere in Florida, our office can help. We offer free consultations, and we would love to hear from you. Give us call.
-Brice Zoecklein, Esq.
813-501-5071
