A Florida Partition Action Attorney You Can Trust

A Partition Action is a civil lawsuit to force the sale of Florida real estate. Florida law allows property to be owned jointly by several persons or entities. Often times, joint owners of a property cannot agree on the management or sale of a property or even one joint owner does not want to sell. So, a Partition Lawsuit is a request by one owner to the court to force the sale of the property.

There are many reasons why Florida property owners may decide that a partition of property is needed. The most common partition scenarios are:

1. When adult children inherit residential real estate (aka “property” or “house”) and become joint owners as Tenants in Common (Scenario A).

2. When an unmarried couple purchases property as Joint Tenants with Right of Survivorship and then break up (Scenario B).

3. When two investors purchase an investment/rental property as Tenants in Common and want to part ways (Scenario C).

Scenario 1: The Inherited Home

Anita, Ben, and Carla’s mother, a 65-year-old widow, own a 4-bedroom, 3-bathroom house in Florida valued at $500,000 with a $200,000 mortgage. This is her primary residence where Anita still lives. Unfortunately, their mother passes away suddenly without a will.

Conflict: After their mother’s death, the siblings inherit the house as tenants in common, each holding a one-third interest. Anita wants to stay in the house, but Ben and Carla, who have taken over the mortgage payments, totaling $15,000, want to sell.

Legal Process: To manage their mother’s estate, one sibling needs to initiate probate proceedings. During this process, they need to file a Motion to Determine Homestead Property, which legally confirms that they each own a third of the house as tenants in common.

Resolution Option: With a disagreement on whether to keep or sell the house, and Anita unable to financially buy out Ben and Carla, the siblings opt for a partition action as the best option for Ben and Carla to force the sale of the home.

Proceeds Distribution: Following the sale of the property, the mortgage is paid off first. From the remaining proceeds, Ben and Carla may each receive an additional $2,500 to adjust for the unequal mortgage payments made by them, while Anita may receive $5,000 less due to her unpaid share. Additionally, Ben and Carla might recover their court costs and legal fees from the sale proceeds. Any remaining funds, after subtracting closing costs and the Special Magistrate’s commission, are divided equally among Anita, Ben, and Carla.

Scenario 2: Joint Home Ownership Gone Sour

Introduction: Michael and Lisa*, a couple who have been dating for years but are not married, decide to buy a house together. They purchase a 4-bedroom, 3-bathroom house in Florida for $300,000 with a $200,000 mortgage as Joint Tenants with Right of Survivorship, contributing equally to the purchase. This becomes their primary residence.

Conflict: Over the next two years, Michael ends up paying 75% of the mortgage payments. The property’s value increases to $500,000. Following accusations of infidelity, Lisa moves out, and they face a breakup.

Legal Process: Lisa wishes to sell the house, but Michael, who continues to live there, cannot afford to buy her out or refinance the mortgage on his own.

Resolution Option: Lisa can file a partition lawsuit to force the sale of the house if they cannot agree otherwise.

Proceeds Distribution: After the sale, adjustments are made for Michael’s additional mortgage contributions, potentially giving him 25% more from the sales proceeds relative to their initial equal obligation. Lisa may recover her legal fees and court costs from the proceeds. Once the mortgage is fully paid and all costs are covered, the remaining proceeds, minus closing costs and the Special Magistrate’s commission, are to be divided equally between Michael and Lisa.

*Same applies to same-sex relationships, boyfriend/boyfriend or girlfriend/girlfriend.

Scenario 3: Investment Gone Awry

Introduction: Alex and Bailey, two friends, purchase a 4-bedroom, 3-bathroom house in Florida for $300,000 with a $200,000 mortgage as Tenants in Common. Alex invests an additional $100,000 in repairs and renovations right after the purchase, enhancing the property’s value.

Conflict: Two years later, the property’s value has risen to $500,000. However, the friends’ relationship has deteriorated, and they disagree on the property’s future.

Legal Process: Alex wishes to sell, but Bailey is unable to buy out Alex’s share or refinance the mortgage.

Resolution Option: Alex can file a partition action to force the sale of the house.

Proceeds Distribution: After the sale, the mortgage is paid off first. Alex may receive an additional $50,000 from the sales proceeds as compensation for his initial investment in repairs and renovations. The remaining proceeds, after paying off any associated legal fees and court costs that Alex might recoup, and deducting closing costs and the Special Magistrate’s commission, are divided equally between Alex and Bailey.

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Partition Defense: What Happens if I’m the One Being Sued?

What happens when I don’t want to the sell the property?

One of the most common calls we get is from clients that want to defend against a partition because they want to keep the property. The good news is that you have some options!

Option #1 Settlement

If one or more of the co-owners want to partition the property, but you want to keep it, we can assist you with negotiating a settlement agreement that allows you to keep the property. One of the best things about having a settlement option is that the parties get to negotiate terms that are most important to them. In the event a settlement is not reached privately, we can work to achieve a settlement through mediation. A mediator is an independent person that serves as a go-between to help the parties reach a settlement. Mediators do not take sides. Instead, they remain objective and aim solely to assist the parties to reach an agreement that satisfies both sides.

Option #2 Purchase the Property

Even if you can’t reach a settlement to keep the property, that doesn’t mean you have to lose it. You may be able to purchase the property from the Special Magistrate.
The Special Magistrate is a person appointed by the court to conduct the sale of the property. Once the Special Magistrate has prepared the property for sale, we can help you negotiate the purchase from the Special Magistrate.

Option #3 A Buy-Out under the Uniform Partition of Heirs Property Act

In July 2020, a new law passed allowing one or more heirs who inherit real property to force a buy-out against the other heirs who want to sell the property. While the Heirs Act applies in only limited circumstances, it is a great option for those who qualify.

But what happens if I want to sell the property?

If you are open to selling the property, we would first work to reach an official agreement to sell the property. Once that agreement is made, the property will be sold, and we will work to achieve a settlement agreement to determine the amount of proceeds each party is entitled to receive. In the event we are unable to reach an agreement privately, we have the option to go to mediation. As discussed previously, a mediator is an independent person that serves as a go-between to help the parties reach a settlement. If we go to mediation, and are still unable to reach an agreement, then we will present our case to court asking the judge to make a determination regarding how to properly divide the proceeds between the parties, and issue an order. The good news is that regardless of whether we’re able to reach agreements outside of court or not, we are experienced with these issues, and can assist you throughout the entire process.

Locations of Current and Past Partition/Partition Defense Cases

Partition Lawyer Stephen K. Hachey Is Here to Help!

Stephen K. Hachey, an experienced partition attorney, can not only help you determine your options, but he can advise you on the best course of action based on your unique situation. And with offices spread out across Tampa Bay, he’s available and accessible to begin working for you. It is never too late to get help. The Law Offices of Stephen K. Hachey proudly serves Tampa, St Petersburg, Clearwater, Wesley Chapel, Brandon, Riverview, South Tampa, Orlando, Bradenton and everywhere in between.

Know Your Rights Before You Act

Real estate law involves state statutes and laws, which can often be complicated and intimidating. Stephen K. Hachey can explain laws and regulations that govern any and all activity dealing with residential or commercial real estate. As a real estate law firm, the Law Offices of Stephen K. Hachey is committed to helping individuals and businesses in connection with all types of real estate transactions.

Since 2007, the Law Offices of Stephen K. Hachey has been representing clients with needs just like yours, utilizing years of professional experience. Our Memberships and certifications include:

• Florida Bar Member
• Supreme Court Certified Circuit Civil Mediator
• Certified Residential Mortgage Foreclosure Mediator
• Florida Certified Public Accountant
• Licensed Florida Realtor