A common problem arises in Probate cases where property is transferred to one or more family members and there is a general disagreement regarding what do with the home or property. Partition is a procedure attempting to reach an equitable solution when there are multiple owners of a property. We previously discussed Partition of real property in a earlier post you can access here. Recently Florida law has changed to add a new set of procedural requirements.
First and foremost, the owner of Property in Florida a fundamental right to partition. Condrey v. Condrey, 92 So.2d 423, 426 (Fla. 1957)(“There is no doubt that the law favors the right to partition. And the general rules is that partition is a matter of right”) citing Willard v. Willard, 145 U.S. 116 (S. Ct. 1892). ). Pursuant to Fla. Stat. 64.051 the Court has direct authority to “adjudge the rights and interest of the parties” and partition shall be made if it appears the parties are entitled to it. Further, “when the rights and interests of the Plaintiffs are established or undisputed, the court may order partition to be made and the interest of plaintiffs and such of the defendants as have established their interest be allotted to them..” Id.
Where property to be partitioned is indivisible and subject to sale, there are three (3) options a trial court may look to in conducting a partition sale. Marks v. Stein, 160 So.3d 502 (Fla. 2nd DCA 2015). The first option requires there to be an uncontested allegation that the property is indivisible without prejudice to the owners. Id. at 507. Should the court find that the property is indivisible without prejudice to the owners, then the court is not required to appoint a commission pursuant to sections 64.061(1) – (3) to partition the property. § 64.061(4); See Marks at 507; Geraci v. Geraci, 963 So.2d 904, 907 (Fla. 2nd DCA 2007). The court may instead, on the motion of a party and notice to the others, order a private sale of the property under the supervision of the clerk or a magistrate pursuant to section 64.061(4). Marks at 507. The second option, as outlined in section 64.071, allows the court to order a judicial sale by public auction to the highest bidder and the monies from the sale being paid into the court to be divided among the parties proportionate to their interest in the property. § 64.071(1); Marks at 507. Last, the court may order a private sale of the property based on the stipulation of the parties as outlined in Carlsen v. Carlsen, 346 So.2d 132, 133 (Fla. 2nd DCA 1977).
RECENT CHANGES TO PARTITION AND THE UNIFORM PARTITION OF HEIRS PROPERTY ACT
Recent changes to the Partition statute have altered the procedure for Partition cases in Florida. If a Property is defined as “heir property” there is now some additional procedural requirements designed to afford heirs the opportunity to preserve the Property. More specifically, Fla. Stat. 64.202 (6) defines “heirs property” as:
real property held in tenancy in common which satisfies all of the following requirements as of the filing of the Partition action: (a) There is no agreement in a record binding all the cotenants which governs the partition of the property; (b) One or more of the cotenants acquired title from a relative, whether living or deceased; and (c) Any of the following applies: 1. Twenty percent or more of the interests are held by cotenants who are relatives; 2. Twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or 3. Twenty percent or more of the cotenants are relatives.
If the Property is heirs property, and it likely will be if obtained via a Probate administration, Florida Stat. 64.206 requires:
(1) Except as otherwise provided in subsections (2) and (3), if the court determines that the property that is the subject of a partition action is heirs property, the court shall determine the fair market value of the property by ordering an appraisal pursuant to subsection (4).
(2) If all cotenants have agreed to the value of the property or to another method of valuation, the court shall adopt that value or the value produced by the agreed method of valuation.
(3) If the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, shall determine the fair market value of the property and send notice to the parties of the value.
(4) If the court orders an appraisal, the court shall appoint a disinterested real estate appraiser licensed in this state to determine the fair market value of the property assuming sole ownership of the fee simple estate. On completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court.
(5) If an appraisal is conducted pursuant to subsection (4), not later than 10 days after the appraisal is filed, the court shall send notice to each party with a known address, stating:
(a) The appraised fair market value of the property.
(b) That the appraisal is available at the clerk’s office.
(c) That a party may file with the court an objection to the appraisal not later than 30 days after the notice is sent, stating the grounds for the objection.
(6) If an appraisal is filed with the court pursuant to subsection (4), the court shall conduct a hearing to determine the fair market value of the property not sooner than 31 days after a copy of the notice of the appraisal is sent to each party under subsection (5), whether or not an objection to the appraisal is filed under paragraph (5)(c). In addition to the court-ordered appraisal, the court may consider any other evidence of value offered by a party.
(7) After a hearing under subsection (6), but before considering the merits of the partition action, the court shall determine the fair market value of the property and send notice to the parties of the value.
In addition to a determination of value under this section, the court shall determine the amount of the equitable accounting upon the request of any cotenant and shall appropriately adjust any price, purchase price, apportioned price, buyout, judgment, or partition granted under this part based on the results of the equitable accounting.
So pursuant to Fla. Stat. 64.206 the Court is required to determine the value of the property. A disinterested property appraiser is appointed to help the court determine the “fair market value” of the property in question. Once the appraisal is complete, the owners have a chance to object and/or submit their own documents regarding the value of the property to the court and then the court rules on the official final determination on the value of the property. Typically, this is completed 31 days after the appraisal at a special hearing.
The hearing that determines the final value also determines the percentage of ownership of each co-owner, the percentage owed in taxes, insurance, and other fees and provides buy out information to each of the owners in case one or more want to buy out the others’ rights in the property.
After the hearing, any co-owner/owners wishing to buy out the others must provide notice of intent to the court within 45 days. Then they have 60 days to complete the buyout of the others, if not the property goes to auction or blind bid sale. If more than one co-owner buys out the others, the court will determine the percentage of the new ownership for the existing co-owners.
So although the new procedural requirements set a mechanism for the Court to ensure a valuation of the Property, ultimately as a partial owner of Property you retain (1) the right to buy out the other owners at a determined value (2) the fundamental right as a co-owner who does not want the Property to sell or have your share be purchased for an amount tied to an appraisal or professional valuation.
If you need assistance with a Florida Partition, Florida Probate or any other related legal matter give our office a call. We offer free no obligation consultations.
-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.
