Within the State of Florida especially, it is common to encounter real properties encumbered to more than one party– be it by inheritance, speculative investment, marriage, or some other such instance of shared ownership or tenancy in real estate. When these relationships are legally severed, such assets must be fairly and equitably divided between all invested parties, and in the State of Florida this is referred to as Partition of Real Estate or, more colloquially, Partition Law. Codified under Chapter 64 of the State Statutes, partition matters are a unique area of real estate law and subject to defining rules and regulations that set them apart from other, more familiar forms of litigation. The following is a brief synopsis to help illustrate the process of partitioning real estate in Florida.
If you jointly own real estate in Florida, it is your right to sue for partition. Partition is the dividing up of real property among the owners. When partition is requested, the court decides how much of the property belongs to each individual under Florida Statute 64.051: Judgment.—The court shall adjudge the rights and interests of the parties, and that partition be made if it appears that the parties are entitled to it. When the rights and interests of plaintiffs are established or are undisputed, the court may order partition to be made, and the interest of plaintiffs and such of the defendants as have established their interest to be allotted to them, leaving for future adjustment in the same action the interest of any other defendants.
Where a property can be divided, such as a plot of land, the court determines the appropriate division. If the property can’t be divided, such as with a single family residence, the court may order the sale of the property with the proceeds division stipulated in the court order. It’s important to note that the amount the court determines as appropriate may not be the same amount the plaintiff requested. For instance, if a plaintiff has requested half of a property as joint owner, but the defendant had invested in significant improvements, the court may decide the defendant deserves a larger portion of the proceeds.
There are several common situations that may lead to a request for partition.
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Joint property ownership is a partnership at its core. Partnerships are great tools to save money, promote economies of scale, and better utilize resources. However, in situations where more than one party owns property, decision-making may become cumbersome, partners may not always get along, or they may have different interests which don’t reconcile with each other. Oftentimes, these problems can be resolved without court intervention, but when they cannot, partition of real estate may be the best solution. The following is a general overview of the Florida partition process.
Under F.S. 64.041, a complaint for partition must allege:
- a description of the lands of which partition is demanded;
- the names and places of residence of the owners, joint tenants, tenants in common, coparceners, or other persons interested in the lands;
- the quantity of the interests held by each; and
- any other matters as are necessary to enable the court to adjudicate the rights and interests of the parties.
A partition sale is a secondary measure used only when the property cannot be divided.
Under F.S. 64.061(4), on the motion of any party, property may be sold in lieu of partition if either of the following conditions is satisfied:
- There is an uncontested allegation in a pleading that the property is indivisible and not subject to partition without prejudice to the owners.
- A judgment of partition is entered and the court is satisfied that allegations of indivisibility are correct.
If one of these requirements is met, the court may appoint a special magistrate or the clerk to sell the property. The sale may be either private or public.