Partition (Division of Real Property)

For a multitude of reasons, friends, family members, and business partners frequently choose to buy and hold title to Florida real estate together. The benefits of joint ownership often include sharing property expenses, ease of property management or perhaps enjoying the shared use of a vacation property that otherwise might have been unaffordable. Oftentimes, these relationships are worry free for years; however, there are also times when co-owners can no longer see eye to eye with each other. What legal rights does one owner have when they want to sell jointly owned property? In cases where co-owners cannot agree on selling jointly held property, Florida law provides a solution in the form of a lawsuit for partition.

Partition of real property is defined as the severance of undivided and coexisting interests in real property. Under Florida Statute Chapter 64, a partition action may be brought by “any one or more of several joint tenants, tenants in common, or coparceners, against their cotenants, coparceners, or others interested in the lands to be divided.” The partition lawsuit is filed in the county where the property to be partitioned is located. Partition is an option when two or more parties have a right to immediate possession of real property as tenants in common, joint tenants with right of survivorship, or life tenants. The policy behind a partition is to encourage trade and to pass title with a minimum of ill will and interference between joint owners. When there is a dispute as to title or right to possession of real property, a suit to quiet title, ejectment, or adverse possession can be filed to determine the lawful owners and possessors.

The general rule is that each cotenant is ultimately liable for his or her proportionate share of the obligations and expenses of real property. The rationale is that the equity of one cotenant should not be increased by expenditures of another cotenant. Upon partition, a cotenant paying more than his or her proportionate share is entitled to a credit from the proceeds of sale from the other cotenant’s proportionate share of the expenses. Each party’s proportionate share is determined by using each party’s percentage of ownership. There must also be a determination of the amount and percentage of expenses paid by one party that should be reimbursed from the cotenant’s share.

To the extent that one co-owner makes improvements to a property which enhances its value, the cotenant paying for such improvements can obtain part of the proceeds attributable to the improvements in excess of the share otherwise due. This can be determined by getting an appraisal or valuation of the improvements that enhanced the real property’s value.

By statute, all owners of land must pay a share of the costs and attorneys’ fees associated with the partition of real estate. Because partition imposes costs on everyone, it is important to obtain counsel from an experienced Florida real estate lawyer on what out-of-court options are available. For instance, can the property be listed for sale with a neutral third-party broker? Does one owner want to buy-out the other owner’s interests? Obviously, what works in one case may not be the perfect solution for another.

Whatever your Florida real estate needs are, contact the Miami real estate law firm of ESQ.title for a free consultation at 305-501- 2836.