Partition Actions to Divide Real Property: When Two or More Individuals No Longer Want to Own Real Estate Together

Posted on January 21, 2020, by Jennifer Codding

You and your brother inherit a mansion from your long-lost wealthy uncle. You want to sell the property so you can get cash now. Your brother wants to keep the property, but he is unable to pay you for your share of the property. What do you do?

In cases where joint owners of a property cannot agree to the disposition or management of the property, Florida law allows for the statutory remedy of partition. In an action for partition, the joint owners request that a Court determine the best way to dispose of the joint property and supervise the disposition process.

Any joint owner of the property, other than husband and wife who own the property by the entireties, may file an action for partition. The defendants to the action are the remaining property owners.

Once a joint owner files an action for partition, the Court decides whether to physically divide the property, if feasible, and give each owner a portion, or sell the property and divide the proceeds amongst the joint owners.

Partition Actions Resulting in a Sale or Litigation

If the Court orders a sale, the Court then must determine how to divide the proceeds of the sale. First, proceeds must be applied to any outstanding mortgages or liens encumbering the property. Second, the Court must determine if one joint owner is entitled to more proceeds than the other. For instance, in cases where one joint owner has solely paid the mortgage, the Court may order that joint owner to receive a larger distribution for his contribution to the property. Third, once the disbursements for liens and contributions are made, the balance of the proceeds is distributed to the joint owners. With regard to the attorneys’ fees and costs incurred for the action, per statute, each party must pay their share.

Although partition is available, joint owners should endeavor to utilize the legal remedy as a last option. Litigation by its nature can be costly. Also, it is generally the case that a property sold through a private sale will result in a higher price than that sold through a courthouse auction. Joint owners will likely have better results if they can come to an agreement and avoid litigation.

If you think you might be in need of a partition action, contact Massey Law Group, P.A. to schedule a consultation with an attorney experienced in partition settlement negotiations and litigation.

The above is intended to inform firm clients and friends about recent developments in the law, including analysis of statutes and new case decisions. This update should not be construed as legal advice or a legal opinion, and readers should not act upon the information contained herein without seeking the advice of legal counsel.