Partition FAQs

What is a partition (forced sale of real estate)?

Whenever individuals interested in land as owners and co-tenants are unable to agree on a voluntary partition of the land through consent and mutual agreement, one or more of them has the right to seek judicial proceedings to partition the property. Partition principles are applied flexibly to ensure that the resulting decree is fair, equitable, and just.

What goes in the Partition Complaint?

The complaint must clearly state the land that’s being divided, the names and addresses of the owners or anyone else who’s interested in the land, how much each person owns, and anything else the court needs to know to make a fair decision. Even though it’s not written down in the law, the complaint must ask for the land to be divided. If it doesn’t, the court can’t order it.

What Defenses are Available?

A written agreement not to partition is a valid defense to a partition action. However, an oral agreement to not partition is likely not enforceable due to the statute of frauds. If a party fails to prove sufficient title to the property to permit partition, they will not be permitted to partition it, and partition should not be used as a means to test title. Even if a party does not want to partition, a court must order partition unless it would manifest injustice.

Lastly, if, under the specific circumstances of the case, it appears to the court that equity will not be achieved if partition is granted, such as where manifest injustice, fraud, or oppression would result, the court may, in its discretion, refuse to grant partition.

Accountings

If the plaintiff asks for an accounting in their complaint and the evidence supports it, the trial court can order one.

How does the property get sold?

Under Florida Statutes chapter 64, the trial court has three options for selling property in a partition action:

1. Private sale under supervision: The court can order a private sale under the supervision of a clerk or magistrate, as per section 64.061(4).

2. Judicial sale by public auction: The court can also order a judicial sale by public auction, as per section 64.071.

3. Judicially sanctioned private sale based on a stipulation: In Carlsen v. Carlsen, 346 So. 2d 132, 133 (Fla. 2d DCA 1977), the court approved a third option: a judicially sanctioned procedure for private sale based on a stipulation agreed upon by the parties.

However, if the parties cannot agree on a stipulation, resorting to a private sale as a means of selling the property in a partition action is disapproved.

Do you get a jury trial?

The parties involved in a partition suit are not entitled to a jury trial regarding the legal title to the properties that are to be partitioned.

What is the legal standard on appeal?

Because partition is a matter of equitable jurisdiction, a trial court’s decision to grant credits or setoffs will be affirmed unless it is evident that the court abused its discretion in making that determination. Every presumption favors the correctness of the trial court’s rulings. Furthermore, a decree rendered by the chancellor, especially when it is based primarily on factual questions, will not be overturned unless the evidence clearly demonstrates its error. 

Are Attorneys Fees Awarded?

Attorney fees are recoverable in partition cases, as per statute. All parties to a partition action are obligated to pay the costs of the action, which should be commensurate with their services rendered and beneficial to the partition. The court determines the costs of the partition suit based on equitable principles and may include attorney fees. In accordance with the statute, all costs, including attorney fees, can be assessed against all parties involved in the suit.

Miami partition lawyer

If you’re dealing with a partition, it’s highly recommended to seek advice from a lawyer familiar in in this area. You can reach out to Miami partition lawyer Andrew J. Pascale at 877-667-1211 to discuss your case. Keep in mind that this blog doesn’t provide legal advice and is purely for illustrative purposes.