Partition of Florida Real Estate | Shutts & Bowen LLP
What is the division of real estate?
When two or more co-owners of a property disagree on its use or management, one mechanism to resolve such disagreement is sharing. The division of real estate is a formal legal process governed by Chapter 64 of the Florida statutes. There are two types of sharing: (i) “in-kind” sharing, where the legal title to the property is divided between the owners on an equitable basis (i.e. each owner will own a fraction of the property divided) ; and (ii) sharing by sale, where the property is auctioned off and the proceeds are evenly distributed among the owners (ie each owner will receive a share of the proceeds). Partition by sale can take place if the court concludes that the partition in kind cannot take place without prejudice to the owners. In the case of partition by sale, the court may order that the related costs and expenses be paid from the proceeds of the sale. In addition, all state, county and municipal taxes due at the time of sale must be paid on the product.
When is the score appropriate?
Co-owners of real estate often disagree about the use, management or other aspects of real estate ownership. Maybe one owner wants to sell the property for immediate profit, but another owner wants to wait and see if the property will appreciate further. Maybe one owner intends to develop unimproved real estate, but the other owner wants to keep the property in its natural state for recreational purposes. Maybe the property is mortgaged and the co-owners can’t agree on mortgage debt repayment or debt refinancing. If the co-owners cannot resolve these issues among themselves, formal sharing may be appropriate.
Who can request a score?
An action for sharing can be brought either by a natural person or by a legal person. Legal action may be brought by one or more co-owners, co-owners or co-owners (co-heirs) or others interested in the land to be divided. However, a sharing action cannot be brought by one spouse against another if the married couple owns the property as tenants by the entirety. Naurison vs. Naurison, 132 So. 2d 623 (Fla. 3d DCA 1961). The dissolution of the marriage turns the property into common tenants, and subsequently the property can be shared. Besides, “[i]interests which are simply successive, and not competing, are not shareable. Barden vs. Pappas, 532 So. 2d 707 (Fla. 5th DCA 1988). This means that a remainder cannot maintain a share action against the holder of a life estate (and vice versa).
Although the general rule is that the division of real estate by a co-owner is a question of law, the right of division can be waived by agreement. Condrey v. Condrey, 92 So. 2d 423, 426 (Florida 1957). Nevertheless, under Condrey, a non-sharing agreement must be concluded for a reasonable and defined period and not otherwise be unduly restrictive.
Where is the partition lawsuit filed?
The sharing suit must be filed in the county where the real part or part of it is located. The score is a in rem cause of action and is subject to the rule of local action, notwithstanding the place of residence of the co-owners. Harvey vs. Mattes, 484 So. 2d 1382 (Fla. 5th DCA 1986). Where the sharing lawsuit cannot be personally served on a co-owner, service of the proceeding by publication is permitted by section 49.021, Florida Statutes.
What about mortgages on the property?
If the real estate in question is the subject of a mortgage, the mortgagee (lender) is an appropriate party in the partition process. Once the mortgagee has become a party to the partition process, the mortgagee can enter their mortgage in the partition process. Miles to Miles, 158 So. 520 (Florida 1935). Foreclosure of the mortgage could create additional complexities and costs for the building co-owners.
How is the score made?
If the court determines that the real property should be divided, the court will appoint three commissioners to support the partition in accordance with section 64.061, Florida Statutes. Commissioners have the power to retain the services of a surveyor to assist them in their efforts, and commissioners are entitled to reasonable remuneration for their services. The Commissioners will prepare a report for the tribunal regarding the partition, although parties may object to the Commissioner’s report. If there are no objections to the report or if the court finds the objections to be unfounded, then the court will issue a final registered judgment giving the parties title to the plots of land allocated to them.
If the partition in kind is not possible without prejudice to one of the co-owners, then the court has three possibilities to order a sale of partition: by the clerk or a magistrate under article 64.061 (4), or (3) a private sale based on the stipulation of the parties in accordance with Carlsen. ” Marks v. Stein, 160 So. 3d 502 (Fla. 2d DCA 2015) (citing Carlsen v. Carlsen, 346 So. 2d 132 (Fla. 2d DCA 1977)). If the third option under Carlsen is selected, the co-owners then have the option of negotiating a buy-out between them or of organizing a private sale to a third party, subject to a reasonable period of time. If the deadline is not met, the judicial sale of the property will take place in accordance with Chapter 64, Florida Statutes.
What alternatives to the score exist?
When real estate co-owners cannot agree on the use, management or other aspects of real estate ownership, they should first explore alternatives such as a buyout between them or a sale to a third party. This may involve hiring one or more appraisers to determine the fair market value of the property, communicating with mortgage lenders, and / or selecting a broker to assist with the sale of the property, while still working on the property. ensuring that the property is maintained and that taxes and insurance are paid.
Legal counsel should be retained as soon as it becomes apparent to a co-owner that they are in an impasse with another co-owner regarding the use, management or other aspects of real estate ownership. A legal advisor can facilitate the division of title to the property between the co-owners, arrange a buyout between the co-owners, or negotiate the sale of the property to a third party without the need to take formal legal action for the partition (and its associated costs and delays).