Florida Partition Actions 

What is partition?

Partition is a court ordered process for determining the interests of co-owners of real property. If the property cannot be divided, it is sold, and the proceeds are shared among the owners. Any one or more joint tenants, tenants in common, or coparceners can file a complaint for partition against their cotenants, coparceners, or others interested in the lands to be divided. This type of partition is known as judicial partition or compulsory partition.

Who can file for partition?

The parties who can file a partition action are outlined in Florida Statute 64.031. These parties include joint tenants, tenants in common, or coparceners who are against their co-tenants, coparceners, or other interested parties in the land to be divided. A complaint for partition must prove that the plaintiff holds title to the land and possesses or has the right to immediate possession. It must also provide the plaintiff’s best knowledge and belief regarding the names, places of residence, and interests of the defendants against whom partition is sought. 

Venue

Circuit courts have exclusive original jurisdiction over all actions involving the title to and boundaries of real property, as per F.S. 26.012(2)(g). F.S. 64.022 specifies that a partition action must be filed in the county where the lands or any part thereof are located.

Scope of Relief 

All relevant disputes concerning the property should be resolved through a partition action to ensure complete relief for all parties involved. Miller v. Griffin, 99 Fla. 976, 128 So. 416 (1930), serves as a legal precedent in this regard. A complaint for partition may also include counts for other forms of relief, such as legal or equitable remedies, or both.  A lis pendens should also be recorded to maintain the status of the case.

Service of Process

If personal service of process is impossible on a defendant in a partition proceeding, jurisdiction over that party can be acquired through constructive service by publication, as outlined in Florida Statute 49.011(3). For instance, in Miller v. Partin, 31 So. 3d 224 (Fla. 5th DCA 2010), it was demonstrated that this form of constructive service through a newspaper can be effective even when there’s an unknown claimant to the subject property. Harvey v. Deeland, 276 So. 2d 518 (Fla. 1st DCA 1973), further supports this concept.

Sale Of Property in Lieu Of Partition

There are three different procedures that may be available to a trial court for conducting a partition sale: (1) a judicial sale by public auction under F.S. 64.071; (2) a sale conducted by the clerk or a magistrate under F.S. 64.061; or (3) a sale based on the stipulation of the parties in accordance with Carlsen v. Carlsen, 346 So. 2d 132 (Fla. 2d DCA 1977). Marks v. Stein, 160 So. 3d 502 (Fla. 2d DCA 2015).

Private Sale Based on Stipulation of Parties

A private sale of property in lieu of partition is the most popular option. The procedural requirements for a private sale based on a stipulation by the parties were outlined in Carlsen. The court determined that two essential requirements must be met: (1) the judgment must set a reasonable deadline for the arrangements to be completed, and any private sale is subject to court approval; and (2) the judgment must specify that if the property is not amicably resolved within a specified reasonable period, judicial sale must take place in accordance with F.S. Chapter 64. This procedure provides the parties with a fixed, reasonable timeframe to voluntarily sell all or part of the property for the most cooperative maximization of the sales price. In re Marriage of Jones, 357 So. 2d 439, 442 (Fla. 2d DCA 1978). The rationale behind requiring a reasonable deadline for the voluntary sale is to give the parties an opportunity to secure a higher sales price compared to a judicial sale while ensuring finality in the event a private sale fails to materialize. Marks, 160 So. 3d at 507. 

Costs

In Florida, when a property is divided, each party is responsible for paying a share of the costs associated with the division, including attorney’s fees. This rule is outlined in Florida Statute 64.081. The amount each party owes is determined based on their ownership stake in the property. For example, if one person owns 60% of the property, they’ll pay 60% of the costs. This principle is based on fairness and equity.  If the property is sold, each party’s share of the costs must be paid. However, the court can order that a party’s share be held back from the sale proceeds that are due to them. Additionally, all taxes that were due at the time of sale, including state, county, and municipal taxes, must be paid using the purchase money. 

Attorneys’ Fees

In Florida, attorneys who represent parties in a partition proceeding can recover their fees if their services were helpful to the case. This is outlined in Florida Statute 64.081. But here’s the catch: only if their services were actually beneficial to the outcome of the case.  Let’s take a look at two cases to illustrate this. In Daugharty v. Daugharty (441 So. 2d 1160, Fla. 1st DCA 1983), the court said no to the lawyer’s request for fees because their services were a waste of time. The lawyer kept bringing up silly arguments and dragging the case out.  In Moraitis v. Galluzzo (511 So. 2d 427, Fla. 4th DCA 1987), the court reversed an award of fees for a lawyer who not only fought against a successful partition but also filed a counterclaim for other things.  Another thing to consider when deciding on attorneys’ fees is the value of the services provided. If the lawyer representing a smaller co-tenant does more valuable work than the lawyer representing the majority interest, the lawyer representing the smaller party should get paid more.  The amount of fees that can be recovered in a partition action depends on a lot of factors, like the services performed, the level of expertise required, the circumstances of the case, and what other lawyers charge for similar services.

A Court Can Deny Partition Only in Extreme Cases 

The power of the trial court to deny partition should be invoked only in extreme cases, where otherwise manifest injustice, fraud or oppression would result if the remedy were granted. Martinez-Noda v. Pascual, 305 So. 3d 321 (Fla. 3d DCA 2020).

Agreements not to partition

A party may be estopped from seeking partition by entering into an agreement not to invoke this relief. These agreements, whether express or implied, are generally enforceable unless they are unduly restrictive. Haddad v. Hester, 964 So. 2d 707 (Fla. 3d DCA 2007)

Deltona Partition Lawyer

Real estate litigation, such as forcing the sale of property, is often contentious and fraught with uncertainty. Let Andrew J. Pascale, Law Offices of Andrew J. Pascale help educate you.  Call Deltona area partition lawyer today at 877-667-1211.