The Florida Partition Process
Partition is a legal process that is used when property owners can’t reach an agreement on whether and how to sell their property. It is usually used as a last resort. It is normally more friendly and less expensive for the owners to reach an agreement on the terms of any real estate sale.
Some of the reasons why property owners may seek a Florida partition
There are many different reasons owners may partition a property. The reasons usually correspond to the reason the homeowners purchased the property in the first place. Some of these reasons include:
Whether a partition is used depends on the status of the relationship.
- Spouses. When a husband and wife can’t agree on what to do with their property, it is usually because they are going through a divorce. In divorce cases, the family court may order that the property be sold through the family court.
- Non-spouses. When couples buy a house without getting married, they can’t use the divorce process to resolve their differences. If they can’t agree on what to do with their home, then one member of the couple or one owner if people who aren’t couples bought the property can use partition to force a sale of the home – if a buyout or some other arrangement can’t be made
Some people or businesses buy Florida homes as an investment. They either buy the home with the idea of fixing it up and then selling it or they may decide to hold onto it and then sell it a later date. If they can’t agree on the terms of how to fix or use the property and how to sell it, then partition is a remedy.
Many times, when the second parent dies, the parent leaves the home to his/her children or other heirs such as nieces and nephews. If none of the children wishes to keep the home, then a decision has to be made about how to sell the home. If the heirs object to what to do with the home, then one heir may seek to use partition to force a sale of the property.
Partition actions are filed in the Florida county where the property is located. Partitions are most often used when two or more people have joint ownership in real property. Often, the impetus for requesting a partition is that one of the joint owners isn’t paying the home expenses and taxes.
If one joint owner refuses to pay for the maintenance of the property and wants to live in the home rent-free, then then the other owner(s) usually have no option but to force a sale of the home through a partition action.
Often, the joint owners will explore the possibility of a buy-out. In a buy-out, one owner pays the other owner to buy-out the other owner’s interest. A buyout depends on whether the owner who wishes to keep the property has enough funds to pay the other owner – or to obtain a loan and mortgage to pay the other person.
Many times, the joint owners do agree on the need for a sale but there are other disputes:
- They may not agree on how and when to sell the property
- They may not agree on how the proceeds of the sale should be handled
If the owners can agree on how to sell their property, they should work with experienced Sebastian and Vero Beach real estate lawyers. Skilled lawyers review the agreement of sale and guide the sellers through the closing process.
If the owners cannot agree, there are two types of remedies – partition by in-kind and partition by sale.
The partition process – the complaint
The Florida partition process must comply with the Florida Statutes – Chapter 64 – titled “Partition of Property.” The first part of the partition action is the filing of the complaint. By statute, the complaint shall include the following:
- “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 according to the best knowledge and belief of plaintiff”
- “The quantity held by each”
- Other relevant matters which can help the court understand the issues
If some items are not known such as the residence of a co-owner – that lack of knowledge should be stated in the complaint.
The partition process- the initial court review, commissioner panel, and exceptions
The court that hears the partition cause will first review if the partition action is valid. For example, they will review who the owners really are to see if the petitioner has the authority to file the claim. They’ll review if the partition is the proper remedy.
The owners or the judge (if the owners can’t agree) then appoint a panel of three commissioners to manage the partition process. The commissioners examine the property and review the issues. They may appoint someone to survey the property. The commissioners make a recommendation to the judge. Three commissioners are used so there won’t be a tie.
Any owner who objects to the finding of the commissioner can file objections – within 10 days of the commissioners’ report. The judge decides if the exceptions have merit.
Once the judge approves the commissioners’ report and/or resolves an exception, the judge appoints another person to handle the sale of the real estate.
Types of partitions
There are two types of partition actions:
- Partition in kind. In some cases, usually rare, it may be possible to divide the property so that each owner gets his/her share. This may be a possibility if the property is just land. If there is a home, condo, or any home residence on the land; then a physical division of the property is usually not possible.
- Partitions in the sale. Usually, the property must be sold, and the proceeds divided. The person the judge appoints to handle a sale petition will normally sell the property through a public auction. They won’t use the standard process of listing a property and then negotiating with buyers.
This is a major reason why owners should try to resolve their disputes. The sales price for an auction sale is usually lower than the sales price for a traditional sale. Once a judge approves the partition, the owners should consider again selling the property by agreement. A sale by agreement usually results in a higher price than a sale by auction.
How the proceeds are divided
Before any proceeds are divided, the court costs, the commissioner’s fees, and the fees of the person appointed to handle the sale are paid first. If there are any tax claims against the property, they are also paid before there is any division of the proceeds.
The court may also make adjustments based on who advanced the costs for maintaining the property and for any repairs to the property.
The net proceeds, the amount due after all costs and expenses are paid, are then divided based on the proportional ownership interests of the sellers. For example, if the net proceeds are $160,000 and there are four owners, each owner is awarded $40,000.
How a Florida real estate lawyer can help
An experienced Florida real estate lawyer will examine:
- Whether a buy-out or other settlement can be made
- Will represent the seller in a private sale
- Can explain the pros and cons of the partition actions
- Can work with professionals to determine if a partition in kind is possible
- May file exceptions if appropriate
- Can help document any money spent on repairs and maintenance
- Other issues depending on whether there is an estate or another court proceeding
If you aren’t satisfied that the co-owners are doing what’s best for you, the partition may be a remedy. Call the experienced Florida real estate lawyers at Lulich Attorneys & Consultants today. You can reach us at 772-589-5500 in Sebastian, at 772-7747-7771 in Vero Beach. You can also use our online contact form to schedule an appointment.