While many people are not aware of this terminology, partition actions in the state of Florida are becoming more and more prevalent. A partition action is a legal suit taken to force the sale of jointly-owned property- most commonly real estate. Under Florida law, a co-owner of real property may file a lawsuit against the other co-owner(s) when they cannot agree on how to continue their joint ownership of the property. A partition may be filed on any property held by joint tenants, tenants in common, or coparceners. This action does not apply to co-owners of properties held as a tenancy by the entirety.
If you are uncertain as to the legal status of your property ownership, have been notified of a partition action on your property, or are considering a partition action, the first place to start is with expert legal counsel. Staack, Simms & Reighard PLLC, specialists in real estate law, has a group of attorneys dedicated to this practice. We know each case is unique with varying circumstances and remedies, but read on as we will give you a general overview of the process. Then contact us directly so we can discuss your particular situation and your rights as the co-owner of a property.
Why are Partition Actions Needed?
The Homestead protections found in the Florida constitution were enacted to help protect the family home from a forced sale for the debts of the owner. However, Homestead laws cannot protect an owner from a forced sale when it is at the expense of others who also own an interest in that property. Partition action is used when a co-owner no longer wants to own the real property and there isn’t an agreement among the owners regarding how to dispose of the property or end the co-ownership.
If one of the co-owners is unwilling or unable to buy out the other owner(s) and the Court is not able to declare an equitable division by physically dividing the property, the Court has three options for ordering a partition sale:
- A judicial sale by public auction
- A private sale conducted by the clerk or magistrate
- A private sale based on a stipulation or agreement of the parties
As you can imagine, a public auction may not turn out to be in the best financial interests of all parties, as a court ordered auction rarely results in a fair market value sale. The more favorable outcome is usually when after negotiation, the ownership parties can reach some kind of agreement. Financial results are much better when parties to a partition action market and sell the property in a private sale rather than have the property sold at auction.
When Do these Types of Actions Occur?
To illustrate why a partition action may be filed, assume that a parent (with no surviving spouse) passes away owning a home in Florida. By will, deed, or otherwise, the home passes to the parent’s children equally. One of the children moves into the home after the death, or has been living there before the death, and has decided to stay and live there permanently. The other children live elsewhere- either in or out of state. One or more of the other siblings may want the house sold for their share of the inheritance, but the sibling who wants to live in the house does not have the resources to buy out the others. Either sibling may decide to file a partition action against the one living in the home and force the sale of the house.
Another example that commonly occurs is when a property is inhabited by two people, titled in two individual names, as tenants in common. This means that they each own an undivided 50% interest in the property. The owners decide to split up, and one wants to move out, to be free of any of the home’s future financial responsibilities, and be paid their share of the equity or value in the home. If the other owner does not want to leave, doesn’t have the resources to pay the leaving party the value that is owed them, or can’t maintain the house without them, the owner who is leaving may opt to file a partition action. Or, in another situation, instead of the couple splitting up, an even more complicated issue arises, if one were to die. The deceased owner’s 50% interest would pass to their heirs rather than the surviving co-owner, and the heirs may well file a partition action to collect their inheritance.
There are many different situations where a partition action may be deemed necessary. As you can imagine, not only are these situations complicated legally, but they often involve complex personal relationships and can become emotionally charged. As real estate attorneys, we have a lot of experience with these types of cases and do our best to guide our clients to the best outcome.
The Partition Process
- The process should begin with a formal written request to the other co-owner(s) to split ownership of the real estate, asking for the property’s sale, and that the resulting proceeds be split equally or according to ownership interests.
- If the co-owners do not respond or agree to divide up the property equitably, the first legal step is the filing of a petition or complaint. The co-owner respondents or defendants are given the opportunity to file a written response and answer to the partition complaint.
- The Court will determine the rights and interests of the parties in the lawsuit and a judgment for partition will be entered if it appears that the parties are entitled to it.
- If the parties do not agree as to how the property should be divided, the Court will appoint three suitable individuals as commissioners to devise a plan for partition. The three commissioners are selected by the Court unless agreed on and appointed by the parties. Commissioners will research and then provide a written report to the Court about how the property should be divided.
- If the commissioners find that the property cannot be physically split fairly for all the owners, the Court may order the property be sold at public auction. Proceeds from the sale would be paid into the Court and divided among the parties in proportion to their interest.
- If the commissioner’s report finds that the property is able to be apportioned to each owner equitably according to their percent of share and no objections are filed, or if the Court deems the objections to be unfounded, a final judgment will be entered. The Court will give title to each of the owners for the real estate apportioned to them. Any party is given the opportunity to file objections to the commissioners’ report within 10 days after it is served.
- A judgment of partition is binding on all parties in the lawsuit, and all parties must pay a share of the court costs and attorneys’ fees. In circumstances of a judicial sale, court costs and fees are taken from the proceeds prior to disbursement.
Seek Partition Action Expertise
Since the partition process involves many intricate steps, such actions should only be handled by an estate attorney. Often these matters can be resolved to a successful conclusion by skilled negotiation. In addition, legal counsel is able to help identify other issues that may come into play that would alter the financial outcome, such as if one of the owners has assumed more of the financial burden of the payments, taxes, insurance, and improvements. These expenses should be thoroughly vetted and taken into consideration before the share is divided and can impact the final settlement.
Do not leave the partition action process to chance, or hope that it all just works out. Be represented by knowledgeable, experienced attorneys, and have it done correctly. Call Staack, Simms & Reighard, PLLC so we can help you understand and achieve what you are entitled to under the law.
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