Partition Issues

What does a partition encompass?

Partition is a legal remedy that allows co-owners of real property to divide their interests and eliminate the need for joint ownership. In real estate litigation, partition cases typically arise when co-owners disagree on the property’s use, management, or sale. The court may order a “partition by sale,” which involves selling the property and distributing the proceeds among the co-owners according to their interests. Alternatively, the court may order a “partition in kind,” physically dividing the property among the co-owners, if it is feasible and in the parties’ best interest.

For example, imagine two siblings inheriting a house in Florida from their deceased parent. One sibling wants to sell the property, while the other wants to keep and live in it. The sibling seeking to sell the property can file a partition action in court. If the court determines that dividing the property is not feasible or in the parties’ best interest, it may order a partition by sale, with the proceeds divided accordingly.

Partition actions in Florida fall under Chapter 64 of the Florida Statutes, specifically sections 64.031 through 64.091. These statutes outline, among other activities, filing a partition action, appointing commissioners, dividing or selling a property, and distributing proceeds.

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What are common issues associated with a partition that lead to litigation?

The following issues tend to escalate real estate disputes to litigation:

• Disagreement over property value: Co-owners may have differing opinions on the property’s fair market value, which can lead to conflicts during the partition process.
• Claims of unequal contributions: One co-owner may claim they have contributed more to the property than the others, such as paying a larger share of the mortgage, taxes, or maintenance costs, and seek a more significant percentage of the proceeds from the sale or division.
• Objections to partition in kind: Co-owners may disagree on whether a physical property division is feasible and in their best interest, leading to disputes over whether the property should be partitioned in kind or sold.
• Disputes over liens and encumbrances: Liens or other encumbrances on the property that may affect the division of proceeds or the ability to sell the property often complicate real estate transactions.
• Issues with tenants or lease agreements: Partition actions involving properties with tenants or lease agreements may lead to disputes over the proper allocation of rental income or tenants’ rights during the partition process.

When a set of facts is appropriate for legal advocacy or intervention, there are many paths a claimant may take. We are value-based attorneys at Jimerson Birr, which means we look at each action with our clients from the point of view of costs and benefits while reducing liability. Then, based on our client’s objectives, we chart a path to seek appropriate remedies.

To determine whether your unique situation may necessitate litigation or another form of specialized advocacy, please contact our office to set up your initial consultation.

What measures should counsel take to resolve issues and avoid litigation over partition?

Consider the following strategies:

• Engage in open communication: Maintain transparent and respectful communication with co-owners to address concerns and reach a mutual understanding.
• Retain a neutral appraiser: To resolve disputes over property value, consider hiring an independent appraiser to provide a professional property valuation.
• Document financial contributions: Keep detailed records of each co-owner’s financial contributions to the property, such as mortgage payments, taxes, and maintenance costs, to minimize disputes over unequal contributions.
• Seek mediation or alternative dispute resolution: Before resorting to litigation, explore alternative dispute resolution methods to resolve disagreements amicably and cost-effectively.

Please contact our office to set up your initial consultation to see what forms of legal advocacy or intervention may be available for your unique situation.

Frequently Asked Questions

1. How is a partition action initiated in Florida?

A co-owner must file a complaint with the appropriate court, outlining their interest in the property, the interest of other co-owners, and the reasons for seeking partition. Florida Statutes § 64.031 govern the process for partition actions.

2. What are the differences between partition by sale and partition in kind?

Partition by sale involves selling the property and dividing the proceeds among the co-owners, while partition in kind physically divides the property, allocating a portion to each co-owner. Courts generally prefer partition in kind, but if it’s not practical or equitable, they may order a partition by sale.

3. Can a partition action be stopped once it has begun?

Yes, if the co-owners agree to resolve the dispute, such as one co-owner buying out the other’s interest or both co-owners agreeing on a different method for dividing the property. The court may then dismiss the partition action upon request.

4. How are the costs of a partition action divided among the co-owners?

The costs of a partition action, including attorney’s fees, appraisal fees, and court costs, are generally divided among the co-owners based on their respective ownership interests in the property. However, the court may adjust the allocation of the expenses if it determines that doing so would be more equitable.

5. What happens to tenants or leases during a partition action?

During a partition action, existing leases and tenant rights are typically preserved. If the property is sold in a partition by sale, the buyer takes the property subject to the existing leases. In a partition in kind, the court may allocate the portions of the property subject to leases to the respective co-owners, who then become landlords for those tenants.

Have more questions about real estate transactions and disputes?

Crucially, this partition overview does not begin to cover all the laws implicated by this issue or the factors that may compel the application of such laws. Every case is unique, and the laws can produce different outcomes depending on the individual circumstances.

Jimerson Birr attorneys guide our clients to help make informed decisions while ensuring their rights are respected and protected. Our lawyers are highly trained and experienced in the nuances of the law, so they can accurately interpret statutes and case law and holistically prepare individuals or companies for their legal endeavors. Through this intense personal investment and advocacy, our lawyers will help resolve the issue’s complicated legal problems efficiently and effectively.

Having a Jimerson Birr attorney on your side means securing a team of seasoned, multi-dimensional, cross-functional legal professionals. Whether it is a transaction, an operational issue, a regulatory challenge, or a contested legal predicament that may require court intervention, we remain tireless advocates at every step. Being a value-added law firm means putting the client at the forefront of everything we do. We use our experience to help our clients navigate even the most complex problems and come out the other side triumphant.

If you want to understand your case, the merits of your claim or defense, potential monetary awards, or the amount of exposure you face, you should speak with a qualified Jimerson Birr lawyer. Our experienced team of attorneys is here to help. Call Jimerson Birr at (904) 389-0050 or use the contact form to schedule a consultation.