What you need to know about an action for partition in Florida

12.11.15pngFlorida law allows property to be owned individually, or jointly by several persons or entities.  We are often called on to help resolve cases where joint owners of a property cannot agree on the management or disposition of the property.  If the owners of property cannot resolve those differences through voluntary negotiation, they are sometimes left with a statutory remedy called “partition.”  In short, an action for partition is a request to a court to determine how best to dispose of the jointly-owned property, along with a request to supervise that process.  The partition process may be needed when children inherit property and become joint owners, when an unmarried couple owns property jointly and then split up, or when a business partnership dissolves and cannot agree on the division of its assets.

An action for partition can be filed by any joint owner of property (unless the property is owned by a husband and wife, by the entireties).  The Defendants to the action are all of the other owners of the property.  It requires the filing of a lawsuit in the courthouse, and formal service of the lawsuit on all defendants.  The action must be filed in the County in which the property is located, regardless of where the owners live.

Once an action for partition is filed, the court must decide whether to divide the property and give each owner a portion of it, or whether the property should be sold, and the proceeds of the sale divided amongst the owners.  The first approach is typically only used for large tracts of unimproved land.  The court then must decide what percentage of the property each owner is entitled to.  Some owners may be entitled to a credit for improvements or contributions that they made to the property for its benefit, such as payment of a mortgage or property taxes.

If the court decides that the best way of disposing of the property is at a public sale, it will order that to occur.  If there are mortgages or other liens on the property, they will need to be satisfied from the sales proceeds before the remainder is available for distribution to the owners.  Each party is responsible for paying a share of the costs which are incurred for the action, including attorney’s fees.  However, if partition is not granted by the court for some reason, an award of attorney’s fees will not be made.

We typically advise clients that partition should be viewed as an option of last resort.  A property that is properly advertised and sold through a real estate professional will almost always result in a higher sale price than a property sold at a courthouse auction, so the parties will usually be better off if they can come to an amicable agreement on how to divide the property.  That being said, when co-owners simply cannot come to an agreement, an action for partition may be the only remedy available.

As always, if you have any questions regarding the foregoing, please consult with your real estate attorney.

Sincerely,

Berlin Patten Ebling, PLLC

Article Authored by Daniel C. Guarnieri, Esq. dguarnieri@berlinpatten.com

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.

www.berlinpatten.com 

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