Partition is the right that an owner has to divide real estate that he/she owns with another. Chapter 64 of the Florida Statutes allows co-owners that own real property along with others to force not only the division of that real property but also the sale of it. In another words, it is a way for co-owners of land to terminate their relationship with the other co-owners. In a partition case, the Court will order an equal division of the property if the property can be spilt into equal parts of equal value or apportioned according to ownership interests. For example, if two people owned 3 acres together, the Court might enter a judgment where each person would receive a deed for their 1 1/2 acres, and they can walk away from each other each owning their equal shares.
In circumstances where real estate cannot be divided into equal shares, such as a house, it is a common scenario for the Court to order the sale of the property, and that the proceeds be split equally or according to ownership interests. Partition offers a fair remedy particularly where the co-owner seeking the division cannot afford to buy the other co-owners out of their shares.
The Partition Process Step by Step
- While the Florida Statutes do not prescribe it, the partition process should begin with a formal written demand. The co-owner seeking division of the property should send a written request to the other co-owner(s) to split ownership of the real estate, ask for the property’s sale, and that resulting proceeds be split equally or according to ownership interests. It is strongly encouraged that a copy of the demand letter, with proof of mailing, is kept in personal records.
- If the co-owners do not agree to divide up the property equitably after receiving a written demand, the first step in court action for partition is the filing of a petition or complaint. The complaint must contain the legal elements of partition, including a description of the property to be partitioned, the names and places of residence of the owners, and the quantity or current percentage of ownership held by each owner, which is necessary for the court to determine the rights and interests of the parties. This might require providing a description of the title history for the real estate.
- Since partition is court litigation, like other civil lawsuits, the co-owner respondents or defendants are provided the opportunity to file a written response and answer to the partition complaint.
- The Court will determine the rights and interests of the parties in the lawsuit, and a judgment for partition will be entered if it appears that the parties are entitled to it. When the rights and interests of plaintiffs are established or are undisputed, the court may order the partition according to the parties’ percentage of interest.
- Florida Statute, Chapter 64 instructs the Court to appoint three suitable individuals as commissioners to devise a plan for partition if the parties do not agree how the property should be divided. The three commissioners are selected by the court unless agreed on and appointed by the parties. For circumstances involving partition of an area of land, the commissioners have the power to employ a surveyor, if necessary. Ultimately, the commissioners are to provide a written report to the Court about how the property should be divided.
- Any party is given the opportunity to file objections to the commissioners’ report within 10 days after it is served. If no objections are filed or if the court deems the objections to be unfounded, a final judgment will be entered giving the parties title to the real estate apportioned to them respectively, and giving them ownership and possession. Their title and ownership is automatically quieted as to the other parties in the lawsuit, meaning the other parties can no longer make claims to the property.
- When partition is uncontested after filing the complaint, and the property sought to be partitioned is indivisible and is not subject to partition without prejudice to all owners, any party can make a motion that the court may appoint a special magistrate or order the clerk of court to sell the property either at private or judicial sale.
- If the commissioners report that the real estate is of an indivisible nature, that it cannot be physically split without prejudice to all the owners, the court may order the property be sold at public auction to the highest bidder, and that the proceeds from the sale be paid into the court and divided among the parties in proportion to their interest.
- A judgment of partition is binding on all parties in the lawsuit, and all parties must pay a share of the court costs, including attorneys’ fees to plaintiff’s or defendant’s attorneys or to each of them according to legal services that were rendered, according to the parties’ interest in the real estate. In circumstances of judicial sale, court costs and fees would be taken from the proceeds of sale paid to the court prior to disbursement.
Since the partition process involves intricate steps, these should be handled by an attorney. Do not leave this process to chance or hope that it works out; have it done correctly. Miami based business lawyer Andrew J. Pascale has nearly ten years of experience serving clients that seek partition of property. Contact him today to discuss legal options that are readily available to you.
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