Florida’s Constitutional Homestead Clause Does Not Prevent Partition Among Co-Owners

A client lives in a Florida homestead which se owns jointly with a former girlfriend who has since moved to New York. Ownership on the deed is 2/3 to my client and 1/3 to his ex-girlfriend as tenants in common. My client has been paying the mortgage and taxes for several years since his girlfriend left. Now the girlfriend has hired an attorney who threatened to sue my client to force the sale of the property if my client does not pay for the girlfriends share.

My client believes the girlfriend cannot force the sale of the house because the house is his homestead. His belief is based upon the Florida Constitution’s prohibition against forced sales of Florida homestead.

I believe that the girlfriend is entitled to some consideration for her interest in the house, and that she may sue for partition of the property. In a partition action the court may force the sale of the client’s homestead and thereafter allocated the net proceeds between the two owners on the title. The Florida homestead law prohibits a creditor to forcibly sell a debtor’s homestead to collect a judgment, but the homestead law does not prevent partition of someone’s homestead. The Florida Supreme Court issued a decision many years ago that  specifically permits partition actions against a homestead occupied by one of multiple owners.

Partition actions are equitable in nature, so that the court may allocate proceeds of a partition sale in a fair manner. In this instance, my client would likely get credit for his mortgage and tax payments when sale proceeds are divided.

About the Author

Gideon Alper specializes in asset protection planning for individuals and their families.

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