What is a Partition Action?
In short, a partition is a court ordered sale of jointly owned property. A Partition Action is a lawsuit asking the court to order such a sale. Partition actions are common where a parent dies and leaves property to two or more siblings. One wants to sell, one wants to keep, and they cannot agree. The one that wishes to sell brings a partition action asking the court to order a sale so the proceeds can be fairly divided.
Partition is covered by statute in Florida, and certain attorneys’ fees can sometimes be recovered from the proceeds of a partition sale.
We have handled several partition actions and no two are the same. We always work hard and smart, and that is equally true regarding partition actions. Our firm effectively and efficiently analyzes the relevant facts and documents, including receipts for money spent on the property; we then quickly assess the case’s strengths and weaknesses. We file partition actions and we represent defendants in partition lawsuits. We write demand letters and we write responses to demand letters. In short, we are prepared to litigate when appropriate, and we are equipped to negotiate when that approach is more effective.
We bring our proven boutique approach to our partition clientele. This means our clients do not deal with layers of gatekeepers – secretaries, assistants, paralegals. Our clients communicate directly with their attorney. We strive to be direct and responsive. We understand that our clients do not want to wait, they want answers. We strive to provide efficient and responsive representation.
Partition Action in Florida
Partition Action in Florida can be a complex legal process that involves dividing jointly owned real estate among co-owners. This type of action is typically initiated when there is a dispute among the co-owners regarding the division of the property. In such cases, a partition action can help resolve the issue by legally separating the interests and rights of each party involved.
In Florida, partition actions are governed by specific laws and procedures, which must be followed to ensure a fair and equitable division of the property. It is important to note that the court has the authority to order either a physical division of the property or its sale, depending on the circumstances.
During a partition action, it is essential to have legal representation to navigate through the complexities of the process. An experienced attorney can guide you through each step and protect your rights throughout the proceedings. They can help gather evidence, negotiate with other parties involved, and present your case effectively in court.
When is a Partition Action Necessary?
A partition action becomes a viable option when co-owners cannot reach a consensus on critical decisions related to the shared property. This may include disagreements over whether to sell the property, how to manage or maintain it, or how to allocate expenses and profits. In such cases, any co-owner can initiate a partition lawsuit to compel the division or sale of the property, even if the other parties oppose the action.
The Three Types of Partition Actions in Florida
Florida law recognizes three distinct forms of partition actions, each tailored to address specific circumstances:
Partition by Physical Division
As the name suggests, this approach involves physically dividing the property into separate parcels, with each co-owner receiving a distinct portion. However, this method is rarely employed, as it is often impractical or impossible to divide structures or improvements on the land equitably.
Partition by Sale
This is the most common form of partition action, wherein the court orders the sale of the co-owned property, either through a private transaction or a public auction. The proceeds from the sale are then distributed among the co-owners according to their respective ownership percentages.
Partition by Appraisal
In this scenario, the co-owner(s) wishing to retain ownership can buy out the other parties’ shares at a fair market value determined by a court-appointed appraiser. This option is often favored when the parties can settle the pending lawsuit.
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Filing a Complaint for Partition of an Inherited Property
To initiate a partition action, any co-owner with an ownership interest can file a complaint with the court in the county where the property is located. The complaint must list all co-owners, tenants, lienholders, and any other parties with a vested interest in the property as defendants.
Additionally, the complaint should clearly outline each party’s percentage of ownership and, if applicable, provide a recent appraisal of the property’s value. If the property was recently part of an estate administration, the appraisal conducted during the probate process may be utilized, unless the value has significantly changed since then.
Negotiating a Partition Action Settlement
While partition actions can proceed to trial, it is often in the best interests of all parties to attempt to negotiate a settlement before resorting to costly and time-consuming litigation. Co-owners, particularly family members, may have unique relationships, financial circumstances, and emotional attachments that should be considered when determining the most equitable resolution.
For instance, if three siblings inherit the family home, but only one resides in-state or desires to live in the property, a settlement could allow that sibling to buy out the others’ shares through a loan or installment payments. Such arrangements can help preserve familial bonds and expedite the resolution process, avoiding the potential delays and expenses associated with a protracted legal battle.
Court-Supervised Partition Actions
If the co-owners cannot reach a mutually agreeable settlement, the court will make a ruling, choosing one of the three partition action options outlined earlier. In the case of a partition by sale, the court may order the sale to be conducted under its supervision, with the co-owners responsible for hiring a realtor, facilitating showings, and completing the necessary paperwork at closing.
Costs and Considerations in Partition Actions
Partition actions can involve significant costs, including attorney fees, title reports, legal fees for trial proceedings, and fees for court-appointed referees or appraisers. Florida law mandates that each party bears a share of these costs, as determined by the court’s judgment (F.S. 64.081).
However, if the court orders a partition by sale, these costs can often be covered by the proceeds from the property’s sale, with taxes and other encumbrances paid from the purchase money at the time of the transaction.
Defenses Against Partition Actions
Given the absolute nature of the right to partition in Florida, defenses against such actions are rare. The only viable defense would be if the co-owners had previously waived their right to partition, either verbally, implicitly through their actions, or in writing.
Retaining Ownership Through a Buyout Option
If a co-owner wishes to resist the forced sale of the property, they may pursue a buyout option under F.S. 64.207. This provision allows the co-owner to purchase the remaining percentage of the property belonging to the plaintiff, based on a court-ordered appraisal, thereby preventing the property from being listed on the open market.
The Partition by Sale Process
In cases where the court approves a partition by sale, the property can be sold through various means, including a judicial auction, a private sale supervised by a court-appointed clerk, or a sale agreed upon by the co-owners, as outlined in F.S. 64.210. Once the property is sold, the proceeds are divided among the co-owners according to their respective ownership percentages.
Avoiding Trial Through Negotiation and Mediation
While partition actions can proceed to trial, co-owners are strongly encouraged to explore alternative dispute resolution methods, such as negotiation or mediation, to resolve their conflicts before resorting to litigation. These approaches can save significant time and financial resources, while also preserving relationships and allowing for more flexible and tailored solutions.
For instance, co-owners may agree to sell the property themselves, hiring a broker who can represent the interests of all parties, rather than forcing a formal sale through the courts. Alternatively, they may reach an agreement for one or more co-owners to exercise the buyout option and purchase the remaining ownership shares.
Seeking Experienced Legal Counsel
Given the complexities and potential consequences of partition actions, co-owners should seek the guidance of experienced legal counsel. An attorney well-versed in Florida partition law can provide invaluable advice on the most appropriate course of action, negotiate on behalf of clients, and represent their interests throughout the legal proceedings.
At Rocky Rinker, our team has extensive experience handling partition actions, each with its unique set of facts and circumstances. We pride ourselves on our ability to thoroughly analyze relevant documents, assess case strengths and weaknesses, and develop effective strategies to achieve favorable outcomes for our clients.