People own real estate for different reasons. Many own it to have a place for their family. Some people buy real estate for investment purposes. Others may buy real property for their business office or business operations. Partition of real property is often a remedy when the ownership relationship goes awry. Owners may have different ideas about what to do with the property depending on if they are going through a divorce, the property was inherited by children or others, the investors can’t agree on what to build, or the building plans don’t work out. Business owners may seek a partition when one owner wants to keep the business running and another sees a sale as they way to get paid for his/her interests. Many other reasons for seeking to partition the real property.
Considerations to partition real property
There are many ways people can own property. It can be owned as a husband and wife where the property is titled as tenants by the entirety. Others may own it jointly with the right of survivorship. In both cases, if one spouse dies, the title passes to the other property. Property ownership can be tenants in common – where there are multiple owners each with a partial interest.
Often, the owners can agree on their own how to resolve real property ownership disputes. One or more owners may buy out the interests of the others. They all may agree to sell the property and divide the proceeds according to their ownership interest. Equitable division of property is the general remedy for the division of real property for marital couples going through a divorce.
How does the partition process proceed?
The rules for partitioning property in Florida are outlined in Chapter 64 of the Florida statutes. The partition process takes place in the county where the property is located. The action can be filed by one or more joint tenants, the tenants in common, the heirs to an inheritance, and others with an interest in the land.
The partition complaint should:
• Describe the land
• The names and residences of the owners and any interested parties
• The interest of each party in the land
The court's involvement
The court will first determine if it is Ok to partition the real property. There may be defenses such as that a claim to ownership isn’t really valid. If the judge approves the petition, then three qualified people are appointed as commissioners to manage the partition. After the commissioners are properly sworn in, they may appoint a surveyor to examine the property. They then make a recommendation as to how the property should be partitioned.
Within 10 days, exceptions to the commissioners’ report must be filed. If there are no objections, or the objections are found not to have merit – then the partition is approved. An approved partition then proceeds depending on the type of partition.
The court then appoints a special magistrate to handle the sale of the real property after the court authorizes the sale of the property.
The common types of partition actions
If the owners can’t agree, then the court partition methods are similar to what the agreeable owners would have done without litigation. The two main types of partition are:
Partition in kind
This type of partition is used when the property can be physically divided without affecting the ability of any of the owners to use it. For example, a partition of real property may be viable if the property is just land. If there is a home or building on the land, then the physical division is usually not practical.
Partition by sale
The court can sell property incapable of division. A public sale is the standard method for selling the property. The highest bidder, provided he/she meets the formalities, can generally claim the property. Sales can be conditioned on a mortgage if the buyer pays at least one-third of the purchase price and the owners of the property agree. The owners can also agree to a private sale if they can find a suitable buyer.
The judge may also award costs, legal fees, and taxes based on the reasonable value of the services and the contributions of the owners. For example, if one owner pays all the property taxes or for the maintenance of the property, then that contribution should be taken into account when dividing the interest of selling the property. When the sale occurs, the proceeds first go towards the payments of costs, legal fees, and advances, and then to the owners.
Why use skilled partition real property counsel
An experienced real estate lawyer helps to partition real property lawyer in many ways:
• He may be able to work out a voluntary solution. This can include helping the owners sell the property on their own. It can include negotiating the terms for a buy-out.
• The lawyer can asserts applicable defenses that may apply such as contesting issues of ownership or claims in the property.
• The attorney can fight for owners who have contributed more than their fair share for taxes, repairs, and other matters.
• The lawyer can work to determine who the real owners are and to properly serve them. Some owners may live outside of Florida. Owners may not be alive. There can be other difficulties in serving defendant owners
• The lawyer may assert a valid objection to the appointment of a commissioner or the report filed by the commissioners