Offices located in Delray Beach and Coral Gables, FL
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.
The proceeds of the sale are divided among the cotenants in proportion to their undivided interests in the property. Because partition is equitable in nature, the trial court’s determinations regarding credits and setoffs will generally be affirmed, absent a showing that the court abused its discretion.
In determining the allocation of proceeds of a partition sale, the court must employ a two-step procedure; first, it must determine the percentage of each party’s ownership; next, it must determine reimbursable expenses and calculate each party’s proportionate share.
F.S. 64.081 provides that every party to a partition shall be bound by the judgment to pay a share of the costs of the action, including attorneys’ fees. The share borne by each party is determined on equitable principles guided by the proportion of interest owned. If the property is sold, each party’s proportionate share of the costs must be paid; however, the court may direct a party’s share to be retained from the proceeds of sale that are due to that party. All taxes due at the time of sale, including state, county, and municipal taxes, shall be paid from the purchase money. Costs must be apportioned in accordance with the method prescribed by statute. The court has no authority to assess costs other than in proportion to the parties’ respective property interests.
About the Author
Daniel T. Pascale is the managing partner at ESQ.title His practice is split equally between litigation and providing general counsel services to property managers, developers, contractors, builders, and other real estate professionals in South Florida.
For a complimentary and confidential telephone consultation of your partition matter with Mr. Pascale, please call him at 786-218-1874.