Partition Actions in Florida
What is a Partition Action?
A partition action is a lawsuit between co-owners of real property who cant agree as to any aspect of the management of the property, or for example, whether to sell the real property. Partition actions are governed by Chapter 64, Florida Statutes. Typically, partition actions are used by one owner of real property, against another or others, to force a sale or a physical division of the real property (if possible).
The Different Types of Partition Actions
Florida Law distinguishes between three different types of partition actions: (1) partition by physical division, (2) partition by sale, and (3) partition by appraisal. Partition by physical division is generally applied to undeveloped rural land, and even then, rarely used; this is because it is difficult, if not practically impossible, to physically divide a home or building.
Florida courts will not typically order this type of partition if it might cause one of the co-owners to get a portion of land that is less in value than the share of money which would be obtained through sale of that same portion of the land. The second type of partition, partition by sale, is the most common type of partition action. If partition by sale is ordered by the court, then the co-owned land will be sold, and under court supervision if necessary. It can be sold by the co-owners at a private sale or at a public auction, and the proceeds of the sale are split according to each co-owners percentage ownership of the real property. Lastly, if partition by appraisal is granted by the court, then the co-owner(s) who wish to do so may buy the percentage of the property from the other co-owner(s) at the price the court provides by appraisal.
When is a Partition Action Necessary?
The most common scenario involving partition actions happens when family members co-own real estate, or when an unmarried couple jointly own property, or when business partners jointly own real estate. If in each of the scenarios described above the co-owners agree as to how to manage or whether to sell the property, then of course a partition action will not be necessary. If however there is disagreement as to how to manage or whether to sell the property, any co-owner can file a lawsuit for partition to force a sale or a buy out of the property. Typically, partition actions are necessary after a probate proceeding where real property owned by a decedent is passed on to the heirs who disagree as to whether to sell or how to manage the real property.
How to File a Partition Action
When two or more joint owners of a real estate property cannot come into agreement regarding the sale of the property, one of the owners may file partition lawsuit to enforce the sale of the said property. Under Florida law, when filing partition lawsuit, it is important to remember that pursuant to Chapter 64.022 (link), Florida Statutes, a partition suit must be filed in the county where the property is located. When filing a partition action lawsuit, all the parties including owners, lienholders, lenders, and holders of future estates that have or claim to have interest of the property should be named in the partition suit. At least one of the joint owners has to file partition action for a lawsuit to get started, and when they do so, the other co-owners and lienholders become defendants in the case. The Partition suit then proceeds in the same way any standard civil lawsuit does, provided however that the right to a jury trial does not apply. Typically, a referee will be appointed by the judge to supervise the partition process. Then under F.S. 64.051, the court will investigate and determine the rights and interests of each of the co-owners to decide whether the property should be sold.
What costs are involved in a Partition Action?
It is highly recommended that the partition action is filed with an assistance of an experienced partition attorney. Under F.S. 64.081, each party is bound to pay a share of the costs by the court judgement. These costs include attorney’s fees, costs of a title report, legal fees and costs for handling case through trial, and referee costs. See Deltona Corp. v. Kipnis, App. 2 Dist., 194 So.2d 295 (1966). These costs, however, can be covered with the money acquired through the sale of property in case the court ordered partition by sale. In this case, all taxes and shall be paid off the purchase money at the time of sale.
Defenses to the Partition Actions in Florida
Given that the right to partition is an absolute right in Florida, it is very rare for the court to rule against the forced sale, e.g. “partition” of the property. The only applicable defense to a partition action would be if the owners waived their right to partition. The three ways in which the owners may waive their rights to partition are: (1) verbally, (2) in an implied manner, or (3) in writing.
What can be done to keep the property?
If a defendant in a partition action persists in resisting the sale of the property, the resisting co-owner may pursue a buyout option. Under F.S. 64.207, a buyout option will prevent the property from going to open market, allowing the co-owner willing to retain their title to the property to buy the remaining percentage of it belonging to the plaintiff, if granted. The value at which the remaining portion of the property can be bought for is determined by a court-ordered appraisal.
How Does Partition by Sale Work?
Partition by Sale allows a co-owner to force the sale of a real estate property against the refusal of other(s) co-owner(s). In order to approve Partition by Sale, the court would have to determine whether selling the property and dividing the proceeds between the co-owners would be more convenient than the division of the property itself. If the court orders the sale of property, the said property can either be sold at a judicial auction, through a private sale supervised by a court-appointed clerk, or upon co-owners’ agreement according to F.S. 64.210. After the property has been sold, the proceeds are divided upon co-owners.
Does a Partition Action Have to Go to Trial?
Partition actions do not necessarily have to go to trial. The co-owners are highly encouraged to resolve their dispute before going into litigation. Co-owners can solve property disputes through negotiation. One of the ways that this dispute can be solved is through an agreement by all co-owner to sell the property. In this way, the parties may themselves hire a broker who could fit their needs and work in the interests of all instead of forcing a formal sale through the courts. If the parties cannot come into agreement to sell the co-owned property, then one or more of the co-owners may choose to enforce the buyout option and purchase the remaining percentage of the property. If the co-owners are able to resolve the partition lawsuit outside the courtroom, it will save them both time and money. In the event the partition lawsuit goes to trial, the decision may take up to over a year and cost them thousands of dollars in attorneys fees and costs.