Partition Action

An Orlando partition action allows two or more people who own property together to ask a Court to separate the property when they cannot agree about what to do with the property. Partition actions are common in estate planning when a property owner devises property equally to several heirs, or when divorcing spouses jointly own property. Business investors sometimes buy property in their individual joint names. The joint owners may not equally afford to maintain the property, or they may have different views about when to sell the property.

It is best to reach a voluntary compromise about property disagreements an avoid a judicial partition lawsuit. When compromise does not end in a settlement then any one of joint property owners may file a judicial action for partition in the county where the property is located. Partition actions are available for either real or personal property, but they are most common in joint ownership of real estate.

A partition action involves standard procedures applicable to lawsuits. The petitioning owner files a complaint, serves the complaint on all co-owners and other parties with an interest in the property (defendants), and then the defendants have the opportunity to answer the complaint and assert defenses. Florida partition actions are controlled by Chapter 64 of the Florida Statutes.

A co-owner of Florida property has the right to have the property divided among co-owners. The court will determine the best way to divide the property. If the court finds the subject property may be physically divided. For example, if a parcel of raw land may be divided into sections the court may award separate property sections to each of the co-owners. More often than not, it is impractical to physically allocated a property equitably among co-owners; for example, the existence of improvements such as a house or income producing building on real property may make physical division impractical. When physical allocation among co-owners is not practical the court will order a sale of the entire property with the net proceeds allocated among owners according to their respective interests.

A partition sale may be either a private or a public sale. The statute provides that property may be sold privately with the stipulation of all parties to the partition sue. If parties do not agree to a private sale, then the court will order a judicial sale where the property is sold at a public auction to the highest bidder.

Property expenses (taxes, insurance, attorneys fees, etc) are apportioned among co-owners according to equitable principles. No attorney fees are granted to the party filing a partition suit if partition is denied. Costs of sale are deducted from gross sale proceeds.

A judge’s handling of a partition suit is controlled by past judicial decisions as well as the express language of Chapter 64. There are many prior appellate rulings that interpret the partition statute and address common partition issues. Therefore, a partition may not be available even though it appears to be warranted by the statute because of judicial precedent. A property owners considering initiating a partition lawsuit should first consult with an attorney in order to see if partition is the best solution to a disagreement among co-owners of Florida property.

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Alper Law
Partition Action
February 8, 2016