Can I Recover Attorney Fees for Partition?

Can I be Awarded my Attorney’s Fees in a Partition Lawsuit?

Yes.  An award of costs and attorney’s fees in an action for partition is discretionary with the court.  The amount of attorney’s fees to be awarded is also within discretion of the trial court,  based on, or commensurate with, the services rendered and the benefit to the partition. The award of attorney’s fees in a partition action is based upon the responsibility incurred, the nature of the service, the skill required, the circumstances under which it was rendered, the customary charges for like service, the amount involved, and the ability of the litigants to respond.

And What properties are subject to partition?

Florida law dealing with partition cases is well developed. For example, Florida law dictates that both real and personal property may be partitioned however most partition lawsuits deal with real estate.  Lands held in joint tenancy, tenancy in common, or coparcenary can be the subject of a suit for partition.

But Who Can File a Complaint for Partition?

To seek partition, the plaintiff must have title to the property or a right to partition.  Therefore, a complaint to partition land may be filed by one or more of several joint tenants, tenants in common, or coparceners with legal title.  An example of title is a written quitclaim deed that has been duly recorded, notarized, and signed in the presence of two witnesses, which is presumptively valid and establishes a prima facie case. Conversely, someone who merely holds an equitable interest in the property is not entitled to partition.  

So Is Partition a Matter of Right?

Generally-Yes.  Partition is typically available as a matter of right to anyone who holds an undivided interest in property.  Florida Statute states that partition must be made if it appears that the owners are entitled to it, and that when the rights and interests of the plaintiff is established or is undisputed, the court can order partition to be made.  

Can Partition be Waived?

Yes, it is possible for someone to waive their right to seek a partition if they made a prior agreement, either express or implied, where they agreed not to seek partition.  Moreover, if under the circumstances of a particular case the judge decides that that fairness will not result if a partition is granted, he may not order it.  In that circumstance, a judge may deny the partition, however this will only be invoked in extreme cases to prevent fraud, manifest injustice or oppression which would otherwise occur if the partition were ordered.

How are Rents Accounted for?

A complete accounting of the rents and profits that have been received by an owner  is certainly appropriate.  Moreover, if an owner’s claim for fair rental value results in the other owner who is in possession of the property to request contribution for expenses, the fair rental value may be used as a credit or offset against the expenses.

How are life tenants and remaindermen treated?

Between cotenants of an estate for life, one may maintain a suit for partition against the other. The holder of a life estate, however, cannot maintain an action for partition against the remaindermen. Similarly, a remainderman, having no estate in possession, is not entitled to partition against the other remainderman where there is an outstanding life estate; remaindermen with a life estate outstanding have no unity of possession or right of immediate possession and, therefore, are not joint tenants, tenants in common, or coparceners within the meaning of the governing statute. .

How are Mortgage Payments Treated?

Any party to a partition action can request an accounting for money expended to pay the mortgage loan, including any insurance and taxes on the property. As joint tenants, the obligations in the property are joint, and the tenant meeting those obligations is entitled to credit for the amounts paid upon the sale or partition of the residence. In the absence of special circumstances, the law imposes a duty on the nonpaying tenant to reimburse the paying tenant for common expenses from the proceeds of the partition sale. 

How is the Property Sold?

The court has three choices for ordering the sale of a partitioned property that cannot be physically divided. division: 1, judicial sale by public auction pursuant to partition statute; 2, private sale conducted by clerk or magistrate pursuant to statute; 3, private sale based on stipulation of the parties, in accordance with procedure established by the court. Marks v. Stein, 160 So. 3d 502 (Fla. 2d DCA 2015).

Ouster

Ouster is the act of ejecting or forcing out a tenant out of possession of the property.  In this situation, the owner who is out of possession of the property is not liable to the co-owner for mortgages, taxes, and insurance paid by the co-owner if the co-owner wrongfully excluded the tenant and began to receive all rents and profits derived from the property.  For example, in Bailey v. Parker, 492 So. 2d 1175 (Fla. Dist. Ct. App. 1986), the appellate court held that: (1) tenant out of possession was liable to cotenant for one-half original downpayment on property; (2) tenant out of possession was not liable for mortgage, taxes and insurance paid by cotenant after she evicted him; and (3) tenant in possession was accountable for one-half rental value of property from date of ouster. 

Is There a Right to Jury Trial?

No.  The parties in a partition case are not entitled to a jury trial on the question of legal title to the properties to be partitioned.  

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Have you been served with a complaint for partition? Contact Palm Coast Partition Attorney Andrew Pascale, Law Offices of Andrew J. Pascale, P.A. today to discuss your case. This blog does not constitute legal advice and is for illustrative purposes only.