What is Property Partition?
Property partition in Florida is a legal process that divides jointly owned property among its owners, allowing each to hold their portion independently. This is particularly relevant for Florida homeowners who might find themselves in various situations requiring the division of their property. Common scenarios are when a non-married couple owns property or after the inheritance of Property.
Why Consider a Partition?
Imagine a scenario where siblings inherit a family home and disagree on its use or sale. Or consider ex-spouses co-owning a home post-divorce, with differing ideas about its future. Partition offers a solution to resolve such disputes fairly, ensuring that each party receives their rightful share without ongoing conflicts. When the property is indivisible and subject to sale, there are three different procedures that may be available to a trial court for conducting a partition sale: (1) a judicial sale by public auction under F.S. 64.071; (2) a sale conducted by the clerk or a magistrate under F.S. 64.061; or (3) a sale based on the stipulation of the parties in accordance with Carlsen v. Carlsen, 346 So. 2d 132 (Fla. 2d DCA 1977).
Legal Framework for Partition in Florida
Under Florida’s Chapter 64 statutes, partition is favored by law for its ability to bring peace among co-owners, simplify title transfers, and eliminate the hassles of joint ownership. It can be applied to both real estate and personal property. This means whether it’s a beachfront condo or a jointly inherited boat, co-owners have a legal pathway to separate their interests.
Real Estate Examples
Example 1: Inherited Property
John and Sarah inherit a house in Miami from their parents. While Sarah wants to sell, John wishes to keep the house. Through partition, they can either physically divide the property, if feasible, or opt for a sale where the proceeds are split according to their ownership shares.
Example 2: Investment Property
Two friends, Mike and Dave, buy an investment property in Orlando. Years later, Mike wishes to liquidate his investment, but Dave wants to hold onto it. Partition allows Mike to sell his share while Dave can keep his interest in the property.
Partition of Personal Property
Partition isn’t limited to real estate. For instance, if the same siblings inherited valuable artwork or a collection of antique cars, these too can be subject to partition, allowing each sibling to take ownership of different pieces.
Complexities in Partition
While the concept is straightforward, real-life applications can be complex, especially when dealing with properties that cannot be physically divided. In such cases, a sale might be necessary, and the proceeds are then divided among the owners.
For homestead properties, the rules can get more intricate. If a family home is designated as homestead, the partition can only occur under specific conditions, often after the death of an owner when the property passes to heirs.
Homestead and Survivorship
Consider a husband and wife who own their home with the right of survivorship. Upon one’s death, full ownership automatically passes to the surviving spouse, eliminating the possibility of a partition. However, if they divorce, and the property becomes a tenancy in common, either party can seek a partition.
Legal Agreements to Prevent Partition
Sometimes, co-owners might agree not to partition a property. This could be due to business arrangements or personal preferences. These agreements are legally binding unless deemed overly restrictive or unfair in court. Unless there is an agreement not to partition there is a fundamental right that you will be entitled to force a sale of Property
Partition Accountings:
The Third District in Fernandez v. Marrero, articulated the general principals at issue in a partition as follows:
“In a partition proceeding, there must be an accounting to determine whether each co-tenant has paid his or her proportionate share of the expenses of the property, and to adjust the co-tenants’ accounts accordingly. Santos v. Santos, 773 So. 2d 568, 570 (Fla. 3d DCA 2000) (citing Biondo v. Powers, 743 So. 2d 161, 164 (Fla. 4th DCA 1999)); Kail v. Supernant, No. 8:15-cv-2719-T-27TGW, 2017 WL 2889309, 2017 U.S. Dist. LEXIS 105043 (M.D. Fla. July 7, 2017) (“After the right to partition by sale is established, a two-step analysis is undertaken to: (1) determine each owner’s percentage of ownership, and (2) calculate the proportionate share owed to each owner from the proceeds of a partition for reimbursable investments.”)(citing Biondo, 743 So. 2d at 163-64); O’Donnell, 823 So. 2d at 199 (same).”
Distribution of Costs and Attorney’s Fees
The statute mandates that each party involved in a partition action is responsible for a share of the costs. This includes not only the court costs but also attorney’s fees. The fees to the attorneys (whether representing the plaintiff or the defendant) are to be allocated based on the services rendered that benefitted the partition. The allocation is determined on equitable principles, taking into account each party’s interest in the property.
This approach ensures that the financial burden of legal representation and court proceedings is distributed fairly, reflecting each party’s stake in the outcome of the partition. It prevents one party from disproportionately bearing the cost of initiating or defending against a partition action.
Conclusion
For Florida homeowners, understanding the partition process is crucial, whether dealing with inherited property, divorce, or investment real estate. It ensures that all parties involved can resolve their property issues fairly and equitably, often preserving personal relationships and financial investments. Our office litigates partition actions throughout the state of Florida. If your dealing with a Partition action we would love to hear from you. Give us a call for a free no obligation consultation.
-Brice Zoecklein, Esq.
