Understanding the Florida Partition Process
Some property owners can’t agree on whether they should sell their property and how the property should be sold. When a buyout or alternative arrangement can’t be reached, a partition action may be the only option. A partition is essentially a forced sale of the real property. One owner seeks court approval to sell the property against the wishes of the other owner.
In a partition action, the court generally orders that:
- The property be divided so that each owner owns a specific portion of the property.
- The property be sold and the proceeds divided among the owners.
Which option a judge chooses often depends on how the property can be used. Splitting land is different than splitting land with a house on it.
At Lulich & Attorneys, our Vero Beach and Sebastian real estate lawyers understand when negotiations to sell a property are possible and when filing a partition action is the only remedy. We guide our clients through the partition process to help ensure the property is properly divided or sold, that clear title can be given to any buyers, and that any sale receives a fair price. Sometimes, filing a partition action helps the owner who doesn’t want to sell - negotiate a sale or a buyout. If an owner doesn’t want to negotiate, then a judge may force a partition of the real property.
Why do Florida property owners use a partition remedy?
It’s first important to understand how real property is titled. Generally, spouses hold property as tenants by the entirety. They own the property together. When the first spouse dies, the second spouse is entitled to the property. Non-spouses can own the real property as joint tenants with right of survivorship or as tenants in common. A joint tenancy with right of survivorship, like a tenants by entirety, means the owners own the property together. If an owner dies, the remaining owners own the property. In a tenants in common arrangement, each owner owns a share of the property.
One or more owners may seek to partition a property for the following reasons:
- A divorce. If the spouses can’t agree to sell the property on their own and one spouse can’t agree to buyout the other spouses’ share, a judge can decide how the division of the real property should be handled.
- A dispute between joint owners who live in the property. How the dispute is resolved often depends on the purpose for buying the property. Some people buy a property together in order to live in the property – even though they’re not married. A partition can be used when the relationship turns sour and one owner doesn’t want to leave.
- A dispute between investors. Some owners buy a property in order to lease it to other tenants. If an agreement can’t be reached on how to fix the property, the terms of rental agreements, or other matters – then a partition may be necessary.
- A dispute between heirs. When a second parent dies, then disputes may arise between the children or heirs about how to handle the property. These disputes can intensify if a child is living in the home at the time the parent dies. Normally, in estate matters, the personal representative(s) determine what to do with the home. If the representatives can’t agree or there is no personal representative, a partition action may be necessary.
Disputes may also arise if one owner isn’t paying his/her fair share of the expenses on the property.
How do our experienced Florida petition help resolve partition issues?
Many times, we work to arrange a buyout – if the person who wants to keep the property can afford the buyout. We often work with appraisers to determine the value of the property. We then review the assets and incomes of the person who wants to keep the property to determine if a buyout is possible.
If a buyout can’t be arranged, then we file a partition complaint. Chapter 64 (Partition of Property) of the Florida statutes controls the partition process. The process begins by the filing of a complaint which describes the land to be partitioned, identifies the ownership interests of the all the parties, and any other relevant matters.
The court will determine if there is a valid claim for petition If so, the owners (or the judge) appoint three commissioners to manage the partition process. The commissioners will appoint someone to survey the property. The commissioner will make a recommendation to the judge. A judge may also need to resolve any exceptions to the recommendation. If the judge authorizes a partition, the judge also appoints someone to handle the sale of the real property.
How can Florida real property be partitioned?
There are two types of partition actions.
- A partition in kind divides the property so that each own can use it or sell it as they see fit.
- A partition in sale requires that the property be sold. The person appointed by the judge to handle the sale will normally conduct a public auction.
Since a sale by auction often yields less money than a traditional sale, all parties to a partition action should consider reaching an agreement to obtain a better sales price.
How are the proceeds of the sale divided?
Proceeds means the net proceeds. When the auction is completed, everyone involved in the legal side of the case for the court is paid first – the commissioners, the person who handles the auction, and any court costs. Tax claims are also paid before any funds are distributed. The judge may also authorize some payments if one or more owners paid any money to maintain the property until the property was sold.
The net proceeds are paid according to the ownership interests of each of the parties.
At Lulich & Attorneys, our Vero Beach and Sebastian real estate lawyers help with every phase of the partition – exploring a settlement, filing a partition complaint, exploring whether a partition in kind is possible, reviewing any exceptions, itemizing any payments, and reviewing any other relevant issues. To discuss when and how to file a partition action, call us at 772-589-5500 or fill out our contact form.