A property is one of the most valuable assets you can own. However, this can become a little more complex when you’re the co-owner of the property. While it’s perfectly possible to have a harmonious relationship with other co-owners, disputes can certainly arise. In some instances, this may require some form of legal intervention.
One of the tools available to help reach a resolution between co-owners is a partition action. However, this isn’t always a straightforward process and can benefit from collaborating with an experienced Florida real estate attorney. Nevertheless, it’s worth getting a good sense of why and how to start a partition action.
Let’s take a closer look at the process.
What is a Partition Action?
Before getting into how to start a partition action, it’s important to understand what this means. After all, this helps you to better understand whether it’s the right route for your situation. In essence, a partition action is a legal process that aims to address disputes that arise between co-owners of a property. When the co-owners can’t reach an agreement on how to use the property, how it might be managed, or how to liquidate it, the partition can be a useful tool. It involves the courts determining the terms of division or sale of the property, making a final ruling to settle the dispute.
Another important consideration of the definition of partition actions is that there are two main types. Usually, the most preferable type is voluntary partition action. This is where — often with the assistance of mediation — both owners reach a mutual agreement on how to divide and use the property. Naturally, you’ll often find this is less stressful and more cost-effective. However, when neither party is willing to budge, you might seek an involuntary partition action that enables the courts to decide on the outcome.
Making the Decision to Pursue Partition Action
Pursuing a partition action isn’t something to head into lightly. Particularly in respect of involuntary partitions, there can be a great deal of legal complexity, financial commitment, and time involved. It’s important to take the time to establish whether this is the most sensible course of action for you.
Some of the considerations can include:
Is partition necessary?
Carefully assess whether a partition is appropriate to the circumstances. It isn’t usually advisable if the dispute between you and your co-owner is relatively minor and might be resolved in another fashion. That said, a partition could be recommended if there are clear and insurmountable conflicting interests or irreconcilable differences, particularly if there has been a communication breakdown.
Is action financially viable?
Different types of partition action will require some financial investment. Certainly, in the case of voluntary partition, there will usually be attorney’s fees and court costs. In voluntary situations, you may still need to pay for the cost of a mediator and perhaps attorney fees to produce a legally-binding contract based on your negotiations. It’s important to assess whether the financial outlay is affordable and proportionate.
How to Start a Partition Action
If you decide to pursue a partition action, it’s important to take the correct steps. This is why it can be so important to collaborate with an attorney with experience in real estate. They’ll help ensure that all the administrative aspects required to allow the smoothest and most efficient process are in order.
Some of the key steps to starting a partition action include:
- Gathering essential information and documents: The first step in the process is to gather a variety of documents that are pertinent to the property in question. This is likely to include the property title and ownership details. This should clearly specify who the co-owners are and what the current structure of your co-ownership is. In addition, if you have any previously existing co-ownership agreements or voluntary partition actions, you should include this in your file of documents.
- Engaging a real estate attorney: Given the complexity of partition actions, engaging legal counsel is recommended. Take the time to carefully assess which attorney is right for your situation. Look for one with experience not just in real estate, but in handling cases with circumstances similar to yours. This helps to ensure you collaborate with an expert that can provide the most relevant guidance and represent you effectively throughout the partition action process.
- Filing the petition: If a voluntary action isn’t appropriate, your real estate attorney will collaborate with you to create a petition for the partition action to proceed through the courts. This essentially involves outlining the circumstances of your complaint, who the other parties involved are, and any specific issues that may affect the outcome of the case. The petition should also include copies of all the key documents you’ve gathered, in addition to any other evidence your attorney feels is pertinent to the case. Your attorney then submits this to the court.
What Happens Next?
Once you’ve initiated the partition action, the next steps generally depend on the specific circumstances of your case. However, in many involuntary partition action situations, you can expect some if not all of the following elements:
- Serving to co-owners: After filing the partition lawsuit, the court requires that all co-owners involved have to be formally served with a notice in respect of the case. This provides co-owners with the opportunity to respond to the petition, appoint their own attorney, and provide the court with any additional documents and information they feel necessary.
- Review by the courts: The court will examine all the documents and information provided by the parties. From here, they might outright reject the case as not being relevant for a partition action. Alternatively, they’ll move the case forward.
- Appointment of and review by commissioners: The court will often appoint three commissioners. These are experts whose role it is to examine the circumstances and evidence related to partition action cases. In complex circumstances, these commissioners might appoint additional experts to inspect the property itself or the documents. They’ll then individually make recommendations on the outcome to the court.
- Response to commissioner findings: The judge in the case will advise all parties of the commissioners’ findings. They will then provide a timescale — usually around 10 days — for either party to submit objections. The court will review these and establish whether these are credible.
At the end of the partition action process, the court will make a determination on the outcome. This usually involves one of the following:
Physical Division of the Property
Depending on the type and size of the property in question, it may be viable to physically divide the property among the co-owners. This enables each owner to manage or sell their portion of the property as they see fit. This is most common when the disputed property is a large parcel of land, an estate with multiple buildings, or a building divided into multiple units.
Sale of the Property and Distribution of Proceeds
The most common outcome is that the property will be sold and the proceeds divided according to the findings of the partition action. Usually, the court will arrange for the property to be sold by auction, rather than appoint one of the owners to list and sell the property. Once the property has been sold, there will usually be deductions for court fees, commissioner costs, and any other fees before the remainder is divided among the co-owners.
Wrapping Up
A partition action can be an effective tool when disputes between co-owners about the use of a shared property reach a stalemate. However, it is important to remember that pursuing this course through the courts can be a costly and lengthy process, not to mention that the auction sale of the property may not be as profitable as without the action. Wherever possible, aim to reach an amicable and voluntary resolution with co-owners. In either case, collaborating with an experienced real estate attorney helps ensure your best chance of a fair outcome.
