Article X, § 4(a), of the Florida Constitution provides that homestead property “shall be exempt from forced sale under process of any court.” The purpose of a homestead exemption is to prevent creditors from forcing the head of the household to sell the property, not to keep one entitled to possession from realization of it.  However, a homestead exemption does not defeat an action for partition.

Florida courts consistently rule that homestead property can be partitioned. In Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978), the Florida Supreme Court decided that the homestead exemption does not stop a cotenant from seeking partition. The court stated, “This court has never held that the homestead provision precludes a common owner of property from suing for partition and obtaining a forced sale to enjoy her interest in the property.” Id. at 377. 

Whether marital real property was designated as homestead before, during, or after the Final Judgment of Dissolution of Marriage, it does not prevent partition and sale.

Deltona Partition Lawyer

Florida homesteaded property can be partitioned.  The forced sale of jointly owned property in Florida almost always arises from disputes between co-owners over what to do with the property.  Speak with Deltona area partition attorney Andrew J. Pascale, Law Offices of Andrew J. Pascale today at 877-667-1211 to discuss your case. This blog does not constitute legal advice and is for illustrative purposes 

The term “partition” means dividing up something that’s shared between people. It applies to things like joint tenancies and tenancies in common. If you own land with someone else, and you both want to split it up, you can ask a court to help you do that.  The goal of a partition action is to make sure everyone gets what they’re owed, not to get back the whole thing. It’s about dividing the land fairly and equally, so that everyone can live happily and enjoy their share.  Partition cases are usually in court, and they’re called “in rem” actions because the property itself is the focus. The court will look at all the evidence and decide what’s fair and just.  Partition can be done either by agreement or by court order. If you and your partner agree to split up the land, you can do it together. If you can’t agree, you can take the case to court and let the judge decide.  The shares and interests of the people involved in a partition case are determined by what the court says they’re entitled to, not by what they say they want.

Accountings for Jointly Owned Property and Improvements

In a partition proceeding, an accounting is crucial to determine whether each co-tenant has paid their proportionate share of the property’s expenses and to adjust the co-tenants’ accounts accordingly. 

At the time of the division of jointly owned property, a co-tenant is entitled to credit for half of the expenses incurred for necessary and reasonable repairs, maintenance, and replacements that preserve the property. Additionally, a paying co-tenant is also entitled to credit for improvements made to jointly held property to the extent that such improvements increase the property’s value at the time of partition, but not for the cost of the improvements themselves. Therefore, for a co-tenant to be eligible for credit for improvements made to property that has since been partitioned, they must demonstrate the extent to which the improvements enhanced the property’s value. When a partition is sought, it is advisable to grant an accounting between the co-tenants upon request. 

The rule that a cotenant who improves the common estate may be allowed compensation where the improvements enhance the value of the estate is subject to the qualification that such improvements must be made in good faith with no purpose or intention of embarrassing the other joint owners, hindering partition, or encumbering the estate.  Generally, a cotenant out of possession is entitled to claim the reasonable rental value of the property as an offset against the claim of the cotenant in possession for amounts expended in the improvement of the property. Where the record in the case fails to show the reasonable rental value of the property and the cotenant out of possession fails to present evidence from which such value may be determined, however, the cotenant is not entitled to complain of the partition judgment’s failure to provide for the offset. Diedricks v. Reinhardt, 466 So. 2d 375 (Fla. 3d DCA 1985).

Payment of Taxes

In a partition sale, all state, county, or municipal taxes due on the property must be paid from the purchase money. The trial court can also order the satisfaction of an IRS lien from the sale proceeds.

Distributions of Sale Proceeds

Before distributing the proceeds from a partition sale, a trial court must first ascertain each party’s ownership percentage of the property. Subsequently, the court must identify any reimbursable expenses incurred post-closing and calculate each party’s proportionate share based on their ownership percentage. See Lupo v. Lawson, 301 So. 3d 366 (Fla. 2d DCA 2020).

Jacksonville Partition Lawyer

Whether you’re thinking about filing for partition to split up a house or have been served with a Complaint, it’s a wise to speak with a lawyer who can help educate you. You can call Jacksonville area partition lawyer Andrew J. Pascale at 877-667-1211 to talk about your options confidentially.  This blog does not constitute legal advice and is for illustrative purposes only. 

The overwhelming percentage of real estate partition actions occur between natural people who jointly own property, but partitions are not limited to solely this class of people.  Florida law allows partition actions in a variety of circumstances, including between trustees and beneficiaries, partnerships and corporations.

Partition Actions Involving Trustees and Beneficiaries

Unless otherwise provided in the statutes pertaining to partition, a trustee has the power to exchange, partition, or otherwise change the character of trust property pursuant to 736.0816(4), Fla. Stat.

For instance, when a naked or dry trust is created, vesting the legal title to the trust property in the grantee for their sole use by the beneficiaries, the beneficiaries may obtain a partition of the property under the rule that an individual with the equitable title and a present right of possession to the property also has the right to secure its partition. Conversely, generally, when property is placed in trust through a testamentary direction or a deed of trust, specifying how the trust corpus is to be held, managed, and disposed of, as directed by the trustor, beneficiary, or someone claiming on their behalf, the beneficiary cannot initiate a suit for partition of the property during the trust’s active existence. Permitting partition in such cases would undermine the trust’s objectives and effectively constitute a court-ordered usurpation of the trustee’s powers. Elvins v. Seestedt, 141 Fla. 266, 193 So. 54, 126 A.L.R. 1001 (1940).

Partition Actions Involving Partnerships

If a partnership is terminated and the partners remain as mere tenants in common of the partnership lands, any one of the parties can initiate proceedings to secure the partition of those lands, provided that the property is not obligated to pay the partnership’s liabilities.

Partition Actions Involving Corporations

Partition can be obtained by both natural and corporate entities. For example, a foreign corporation can initiate a lawsuit in the circuit court against a natural person to partition specific property in Florida. Similarly, as with natural persons, the corporate plaintiff in such a lawsuit can also seek general relief, including the declaration of a trust in part of the land involved in the suit and an accounting for the proceeds from the sale of timber extracted from the land by the defendant. This case is cited as Farrell v. Forest Inv. Co., 73 Fla. 191, 74 So. 216, 1 A.L.R. 25 (1917).

Broward Partition Lawyer

Whether you’re thinking about filing for partition or have been served with a Complaint, it’s a wise to speak with a lawyer who can help educate you. You can call Broward partition lawyer Andrew J. Pascale at 877-667-1211 to talk about your options in confidence. The firm serves Broward, Miami-Dade, and Palm Beach Counties. This blog isn’t a substitute for legal advice.

In Florida, the family home is protected by the state constitution and homesteaded property of a deceased family member is automatically inherited by the family at the time death, regardless of whether the loved one had a will or not. Just like it would have been during their lifetime, the home is shielded from claims by the deceased owner’s creditors. However, this protection applies only to the main residence of the deceased. It is important to note that the home passes outside the probate estate.  This means that a personal representative can’t sell the protected homestead because it’s not part of the probate estate. This ensures that the heirs inherit the property and that it’s not lost to creditors or sold to pay estate expenses. 

In the event that the heirs can’t agree on how to share ownership, they can file for partition in the probate court pursuant to F.S. §733.814 and Fla. Prob. R. 5.025. The relevant statute is below:  

733.814 Partition for purpose of distribution.—When two or more beneficiaries are entitled to distribution of undivided interests in any property, the personal representative or any beneficiary may petition the court before the estate is closed to partition the property in the same manner as provided by law for civil actions of partition. The court may direct the personal representative to sell any property that cannot be partitioned without prejudice to the owners and that cannot be allotted equitably and conveniently.

Florida law requires a court first determine that the property cannot be divided fairly among the heirs without causing any harm. The court can also give the personal representative of an estate the power to sell the property privately without having to hold a public auction. This helps to protect the interests of all parties involved.

Service of the Petition

When someone files a petition for partition in probate court, they’ll need to give you formal notice. This notice tells you that you have 20 days to respond to the lawsuit. Rule 5.040(a) says that the notice must be served in a way that requires a signature from the person receiving it. This can be done by service of process, which is the legal way of delivering documents, or by other methods allowed by Florida law.

Notably, partition can also be filed by the siblings, brothers, sisters, heirs and other owners outside of probate by filing of an independent action in the Circuit Court, such as where the probate estate has already been closed.

West Palm Beach partition lawyer

Whether you’re considering filing for partition or have been served with a Complaint, it’s in your best interest to speak with a competent lawyer who knows the ropes. You can call Palm Beach area partition lawyer Andrew J. Pascale at 877-667-1211 to discuss your options in confidence.  The firm serves Broward, Miami-Dade, and Palm Beach Counties.  This blog isn’t a substitute for legal advice.

What is partition?

Partition is a court ordered process for determining the interests of co-owners of real property. If the property cannot be divided, it is sold, and the proceeds are shared among the owners. Any one or more joint tenants, tenants in common, or coparceners can file a complaint for partition against their cotenants, coparceners, or others interested in the lands to be divided. This type of partition is known as judicial partition or compulsory partition.

Who can file for partition?

The parties who can file a partition action are outlined in Florida Statute 64.031. These parties include joint tenants, tenants in common, or coparceners who are against their co-tenants, coparceners, or other interested parties in the land to be divided. A complaint for partition must prove that the plaintiff holds title to the land and possesses or has the right to immediate possession. It must also provide the plaintiff’s best knowledge and belief regarding the names, places of residence, and interests of the defendants against whom partition is sought. 

Venue

Circuit courts have exclusive original jurisdiction over all actions involving the title to and boundaries of real property, as per F.S. 26.012(2)(g). F.S. 64.022 specifies that a partition action must be filed in the county where the lands or any part thereof are located.

Scope of Relief 

All relevant disputes concerning the property should be resolved through a partition action to ensure complete relief for all parties involved. Miller v. Griffin, 99 Fla. 976, 128 So. 416 (1930), serves as a legal precedent in this regard. A complaint for partition may also include counts for other forms of relief, such as legal or equitable remedies, or both.  A lis pendens should also be recorded to maintain the status of the case.

Service of Process

If personal service of process is impossible on a defendant in a partition proceeding, jurisdiction over that party can be acquired through constructive service by publication, as outlined in Florida Statute 49.011(3). For instance, in Miller v. Partin, 31 So. 3d 224 (Fla. 5th DCA 2010), it was demonstrated that this form of constructive service through a newspaper can be effective even when there’s an unknown claimant to the subject property. Harvey v. Deeland, 276 So. 2d 518 (Fla. 1st DCA 1973), further supports this concept.

Sale Of Property in Lieu Of Partition

There are three different procedures that may be available to a trial court for conducting a partition sale: (1) a judicial sale by public auction under F.S. 64.071; (2) a sale conducted by the clerk or a magistrate under F.S. 64.061; or (3) a sale based on the stipulation of the parties in accordance with Carlsen v. Carlsen, 346 So. 2d 132 (Fla. 2d DCA 1977). Marks v. Stein, 160 So. 3d 502 (Fla. 2d DCA 2015).

Private Sale Based on Stipulation of Parties

A private sale of property in lieu of partition is the most popular option. The procedural requirements for a private sale based on a stipulation by the parties were outlined in Carlsen. The court determined that two essential requirements must be met: (1) the judgment must set a reasonable deadline for the arrangements to be completed, and any private sale is subject to court approval; and (2) the judgment must specify that if the property is not amicably resolved within a specified reasonable period, judicial sale must take place in accordance with F.S. Chapter 64. This procedure provides the parties with a fixed, reasonable timeframe to voluntarily sell all or part of the property for the most cooperative maximization of the sales price. In re Marriage of Jones, 357 So. 2d 439, 442 (Fla. 2d DCA 1978). The rationale behind requiring a reasonable deadline for the voluntary sale is to give the parties an opportunity to secure a higher sales price compared to a judicial sale while ensuring finality in the event a private sale fails to materialize. Marks, 160 So. 3d at 507. 

Costs

In Florida, when a property is divided, each party is responsible for paying a share of the costs associated with the division, including attorney’s fees. This rule is outlined in Florida Statute 64.081. The amount each party owes is determined based on their ownership stake in the property. For example, if one person owns 60% of the property, they’ll pay 60% of the costs. This principle is based on fairness and equity.  If the property is sold, each party’s share of the costs must be paid. However, the court can order that a party’s share be held back from the sale proceeds that are due to them. Additionally, all taxes that were due at the time of sale, including state, county, and municipal taxes, must be paid using the purchase money. 

Attorneys’ Fees

In Florida, attorneys who represent parties in a partition proceeding can recover their fees if their services were helpful to the case. This is outlined in Florida Statute 64.081. But here’s the catch: only if their services were actually beneficial to the outcome of the case.  Let’s take a look at two cases to illustrate this. In Daugharty v. Daugharty (441 So. 2d 1160, Fla. 1st DCA 1983), the court said no to the lawyer’s request for fees because their services were a waste of time. The lawyer kept bringing up silly arguments and dragging the case out.  In Moraitis v. Galluzzo (511 So. 2d 427, Fla. 4th DCA 1987), the court reversed an award of fees for a lawyer who not only fought against a successful partition but also filed a counterclaim for other things.  Another thing to consider when deciding on attorneys’ fees is the value of the services provided. If the lawyer representing a smaller co-tenant does more valuable work than the lawyer representing the majority interest, the lawyer representing the smaller party should get paid more.  The amount of fees that can be recovered in a partition action depends on a lot of factors, like the services performed, the level of expertise required, the circumstances of the case, and what other lawyers charge for similar services.

A Court Can Deny Partition Only in Extreme Cases 

The power of the trial court to deny partition should be invoked only in extreme cases, where otherwise manifest injustice, fraud or oppression would result if the remedy were granted. Martinez-Noda v. Pascual, 305 So. 3d 321 (Fla. 3d DCA 2020).

Agreements not to partition

A party may be estopped from seeking partition by entering into an agreement not to invoke this relief. These agreements, whether express or implied, are generally enforceable unless they are unduly restrictive. Haddad v. Hester, 964 So. 2d 707 (Fla. 3d DCA 2007)

Deltona Partition Lawyer

Real estate litigation, such as forcing the sale of property, is often contentious and fraught with uncertainty. Let Andrew J. Pascale, Law Offices of Andrew J. Pascale help educate you.  Call Deltona area partition lawyer today at 877-667-1211.

Case law is like a treasure trove of legal wisdom, built on the decisions made by judges in previous cases. Lawyers use it as their secret weapon when arguing for their clients in court. In this blog, we’re diving into some key case law rulings that might be super helpful.

1.      Blew v. Blew, 358 So.3d 1232 (2023):  Both parties (a married couple going through a divorce) petitioned to partition the marital home which they owned as tenants by the entireties. However, since Chapter 64 pertains to partitions, and sections 64.031 and 64.051 prohibit the partition of property held as tenants by the entireties, the trial court made an error in ordering the partition of the marital residence before the final judgment of dissolution.  

Conclusion: a partition sale of the marital home property prior to the marriage being dissolved is improper.

2.      Lee v. Lee, 352 So.3d 420 (2022):  The court noted that upon dissolution of marriage, tenants of an estate by the entirety become tenants in common and that tenants in common bear “equal responsibility in making all payments necessary to maintain their ownership of the property.

Conclusion:  Each co-tenant is ultimately liable for his or her proportionate share of the taxes, mortgage payments, insurance and maintenance and repair and upon partition, a tenant shouldering a disproportionate responsibility for those obligations is entitled to credit from the proceeds of the sale for the other co-tenant’s proportionate share of those expenses.

3.      Casiano v. Casiano, 370 So.3d 991 (2023):  This case stands for the proposition that Florida law has recognized that when a party raises frivolous or vexatious arguments or defenses, a trial court does not abuse its discretion in declining to apportion such a party’s fees and costs amongst the other parties to a partition action. 

4.      Whitson v. Advocate 3413, LLC, 351 So.3d 174 (2022):  This case stands for the proposition that Every party shall be bound by the judgment to pay a share of the costs, including attorneys’ fees to plaintiff’s or defendant’s attorneys or to each of them commensurate with their services rendered and of benefit to the partition, to be determined on equitable principles in proportion to the party’s interest.

South Florida Partition Lawyer

Have you been served with a complaint for partition or are you considering filing one? Contact South Florida Partition Lawyer Andrew Pascale, Law Offices of Andrew J. Pascale, P.A. today to discuss your case today at 877-667-1211.

The court ordered division and forced sale of real estate owned by two or more people is known as a partition action.  It is started by the filing of a formal Complaint filed in the Circuit Court in the County where the property is located.  

How are attorney fees handled in partition actions?

Florida Statute 64.081 states:

Costs; taxes; attorneys’ fees.—Every party shall be bound by the judgment to pay a share of the costs, including attorneys’ fees to plaintiff’s or defendant’s attorneys or to each of them commensurate with their services rendered and of benefit to the partition, to be determined on equitable principles in proportion to the party’s interest. Such judgment is binding on all his or her goods and chattels, lands, or tenements. In case of sale the court may order the costs and fees to be paid or retained out of the moneys arising from the sale and due to the parties who ought to pay the same. All taxes, state, county, and municipal, due thereon at the time of the sale, shall be paid out of the purchase money.

What are the defenses to partition?

Although most partition lawsuits result  in the home being sold to a third party or to a co-owner, certain defenses do exist.  For example, where the parties have agreed in writing that they will not partition the property, this may act as an absolute bar to a partition.

How long does a partition lawsuit take in Florida?

Rule 1.200 of the Florida Rules of Civil Procedure specifies that every civil case must be assigned to one of three case management tracks: complex, general, or streamlined.  Therefore, Florida courts permit a case to take up to 12 months for non-jury trial case like partition before it must be disposed of-although it is not uncommon for a case to take longer or shorter depending on numerous factors beyond the scope of this article.

How much does a partition action cost in Florida?

On average, the typical litigated partition case in Florida costs about $7,500-$15,000 through trial although you can expect to pay less in some instances and more in heavily litigated and complex cases.  In general, the more equity and valuable the property is, the more fertile it is for litigation and discord among the owners.

Andrew J. Pascale is a Florida division of property lawyer you can count on.

If you’re facing partition, it’s advisable to seek legal counsel from an experienced attorney the field.  Contact Florida partition lawyer Andrew J. Pascale at 877-667-1211 to discuss your case. However, please note that this blog serves as a resource and does not constitute legal advice. We serve Miami, Broward, Palm Beach, Volusia counties.

What is a partition (forced sale of real estate)?

Whenever individuals interested in land as owners and co-tenants are unable to agree on a voluntary partition of the land through consent and mutual agreement, one or more of them has the right to seek judicial proceedings to partition the property. Partition principles are applied flexibly to ensure that the resulting decree is fair, equitable, and just.

What goes in the Partition Complaint?

The complaint must clearly state the land that’s being divided, the names and addresses of the owners or anyone else who’s interested in the land, how much each person owns, and anything else the court needs to know to make a fair decision. Even though it’s not written down in the law, the complaint must ask for the land to be divided. If it doesn’t, the court can’t order it.

What Defenses are Available?

A written agreement not to partition is a valid defense to a partition action. However, an oral agreement to not partition is likely not enforceable due to the statute of frauds. If a party fails to prove sufficient title to the property to permit partition, they will not be permitted to partition it, and partition should not be used as a means to test title. Even if a party does not want to partition, a court must order partition unless it would manifest injustice.

Lastly, if, under the specific circumstances of the case, it appears to the court that equity will not be achieved if partition is granted, such as where manifest injustice, fraud, or oppression would result, the court may, in its discretion, refuse to grant partition.

Accountings

If the plaintiff asks for an accounting in their complaint and the evidence supports it, the trial court can order one.

How does the property get sold?

Under Florida Statutes chapter 64, the trial court has three options for selling property in a partition action:

1. Private sale under supervision: The court can order a private sale under the supervision of a clerk or magistrate, as per section 64.061(4).

2. Judicial sale by public auction: The court can also order a judicial sale by public auction, as per section 64.071.

3. Judicially sanctioned private sale based on a stipulation: In Carlsen v. Carlsen, 346 So. 2d 132, 133 (Fla. 2d DCA 1977), the court approved a third option: a judicially sanctioned procedure for private sale based on a stipulation agreed upon by the parties.

However, if the parties cannot agree on a stipulation, resorting to a private sale as a means of selling the property in a partition action is disapproved.

Do you get a jury trial?

The parties involved in a partition suit are not entitled to a jury trial regarding the legal title to the properties that are to be partitioned.

What is the legal standard on appeal?

Because partition is a matter of equitable jurisdiction, a trial court’s decision to grant credits or setoffs will be affirmed unless it is evident that the court abused its discretion in making that determination. Every presumption favors the correctness of the trial court’s rulings. Furthermore, a decree rendered by the chancellor, especially when it is based primarily on factual questions, will not be overturned unless the evidence clearly demonstrates its error. 

Are Attorneys Fees Awarded?

Attorney fees are recoverable in partition cases, as per statute. All parties to a partition action are obligated to pay the costs of the action, which should be commensurate with their services rendered and beneficial to the partition. The court determines the costs of the partition suit based on equitable principles and may include attorney fees. In accordance with the statute, all costs, including attorney fees, can be assessed against all parties involved in the suit.

Miami partition lawyer

If you’re dealing with a partition, it’s highly recommended to seek advice from a lawyer familiar in in this area. You can reach out to Miami partition lawyer Andrew J. Pascale at 877-667-1211 to discuss your case. Keep in mind that this blog doesn’t provide legal advice and is purely for illustrative purposes.