Chapter 64, Florida Statutes, governs partition of real estate in Florida. The following information relates to the partition of real estate in Florida. Contact Panama City attorney, Karim Tabbaa, Esq. for assistance with judicial partition of real estate.
What Is Partition of Real Estate?
Partition of real estate is a legal process to divide property when joint property owners disagree on how to divide or sell a property. Judicial partition of property should be considered a last resort when both sides cannot fairly agree on a resolution.
There are two types of partition:
- In Kind: the legal titles to real property are divided among the owners.
- By Sale: the property is sold in an auction and the money made is distributed between the owners. Sale can be required if the court determines that partition in kind cannot occur. With a partition by sale, the court can order the attorney fees and costs to be paid out of any proceeds from the sale. Also, tax due at the time of the sale must be paid from the proceeds as well.
How Does Partition of Real Estate Happen?
The following is a summary of the steps for partitioning real estate:
- A partition should begin with a formal written demand to the joint owner. The owner seeking division of the property should send a written request to the other owner or owners to split the ownership of the real estate, ask for the property’s sale, and that the proceeds be split equally or according to the owner’s interests.
- If the owners of the property cannot agree to divide the property after the demand letter is sent, the next step is to file a petition or complaint with the court. This complaint must have the legal elements of the partitions including: the description of the property, the names and places of residence for the owners, and the percentage of the amount that each owner owns of the property.
- The defendants are provided time to file a written response to answer the complaint.
- Then, the court will decide the rights and interests of the owners in the lawsuit. The judgement for the partition will be entered if the owners are entitled to it. Once all the rights and interests of the owners are established or have been undisputed, the court can order the partition according to how much of the percentage of property each owner has.
- Section 64.061, Florida Statutes, requires the court to appoint three suitable individuals as commissioners to make the partition, unless the parties agree otherwise. The commissioners employ a surveyor if necessary and provide a written report about how the property should be divided.
- Any party is given the opportunity to file an objection to the report by the commissioners within 10 days after the report is served. If there aren’t any objections filed or if the court thinks the objections to be unfounded, then a final judgement will be entered giving the owners title to the real estate apportioned and giving them ownership and possession.
- When the partition is uncontested after the filing of the complaint and when the property that was involved in the partition isn’t subject to prejudice, any of the owners can appoint a special magistrate or order the clerk of court to sell the property either as a private sale or a judicial sale.
- If the commissioners determine that the property cannot be split without prejudice to all the owners, then the court can order the property to be sold to the highest bidder at a public auction. The proceeds from the sale are paid to the court, which will then divide the proceeds among the parties according to their interest.
- A judgment of partition is binding on all owners in the lawsuit, which means that all the owners must pay a share of the court costs which include the attorney fees to the plaintiff’s or defendant’s attorneys or to each of them according to legal services that were rendered, depending on the owner’s interests in the property. If there is a judicial sale, then the court costs and fees would be taken from the amount made available to the court prior to giving the money to the owners.
Different Types of Partition Actions
There are three types of partition actions in the State of Florida:
- Partition by Physical Division: usually applied to undeveloped rural land and even then, this is hardly used because it is difficult to physically divide a home or building.
- Partition by Sale: this is the most common type of action. If ordered by the court, the property will be sold under supervision by the court if needed. The proceeds are split according to each owner’s share in the property.
- Partition by Appraisal: the owners who want to buy the percentage of the property from the other owners may do so, but only by the price the court provides at appraisal.
For further assistance with partition actions in Florida, contact Panama City attorney, Karim Tabbaa, Esq. at (850) 270-2000, or visit us online at www.tabbaafirm.com.
(Updated Oct 2023)