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:
When adult children inherit residential real estate (aka “property” or “house”) and become joint owners as Tenants in Common (Scenario A).
When an unmarried couple purchases property as Joint Tenants with Right of Survivorship and then break up (Scenario B).
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.
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.
Florida Uniform Partition of Heirs Property Act FAQs
1. What is the Uniform Partition of Heirs Property Act (UPHPA)?
The Uniform Partition of Heirs Property Act (UPHPA is a law that aims to address issues related to heirs property, which refers to property that is owned by multiple heirs. The act provides a legal framework for the partitioning or division of such property, ensuring that each heir receives a fair share and protecting their property rights.
2. Is the Uniform Partition of Heirs Property Act applicable in Florida?
Yes, Florida has adopted the Uniform Partition of Heirs Property Act. It became effective in the state on July 1, 2020.
3. What does the UPHPA do for co-owners of heirs property in Florida?
The UPHPA in Florida provides a legal framework for co-owners of heirs property to request a partition action. It establishes procedures to ensure a fair division of the property or the opportunity for co-owners to buy out each other’s interests. It also introduces a right of first refusal, allowing co-owners the first opportunity to purchase the property before it is sold to third parties.
4. How does the right of first refusal work in Florida under the UPHPA?
The right of first refusal gives co-owners in Florida the chance to purchase the property if a partition action is initiated. If the property is to be sold, the co-owners must be notified and given the option to buy it at a price determined by an appraisal or an agreed-upon value. Co-owners have a specified time frame within which they can exercise their right of first refusal.
5. Does the UPHPA in Florida require notice to be provided to co-owners?
Yes, the UPHPA in Florida mandates that notice must be provided to all co-owners regarding a partition action. The notice must include specific information about the property, the partition action, the right of first refusal, and the timeframe within which co-owners can exercise their rights.
6. Can co-owners be forced to sell their interests in heirs property under the UPHPA in Florida?
The UPHPA in Florida emphasizes the fair division of property and seeks to protect the interests of co-owners. While the act provides a mechanism for a forced sale in certain circumstances, it is generally intended to provide options for co-owners, such as partitioning the property or buying out each other’s interests, before resorting to a forced sale.
7. Are there any limitations or exceptions under the UPHPA in Florida?
While the UPHPA in Florida provides a legal framework to address heirs property issues, there may be certain limitations or exceptions depending on the specific circumstances. For example, the act may not apply if there is an existing agreement among the co-owners that addresses partitioning or if there are certain liens or encumbrances on the property.
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.
Stephen has been a proud member (Bar# 15322) of the Florida Bar since 2005, has outstanding reputations on Avvo and Justia, as well as incredibly positive peer reviews in Martindale Hubbell.
Florida Partition Action FAQs
1. What is a partition lawsuit?
A partition lawsuit is an action filed with the court to force the sale of real estate (“property”). This can happen when two or more co-owners of a property disagree on whether to keep the property, sell the property, or how to split the proceeds if the property is sold.
2. Who typically files a partition lawsuit?
Any individual who owns a portion of the property has the right to file a partition lawsuit. Common scenarios are ex-boyfriend/ex-girlfriend, heirs, family members, or LGBTQIA+.
3. What is the most common outcome of a partition lawsuit?
The most common outcome of a partition lawsuit is the property is sold and proceeds are split among the co-owners in proportion to their ownership interests and their fair share of expenses related to the property. This includes expenses such as mortgage payments, insurance, taxes, and necessary repairs.
4. How long does a partition lawsuit usually take?
A partition lawsuit usually takes on average 12 hours of legal work over a 9 to 12 month period. If a partition lawsuit is settled, it may take less than 9 to 12 months.
5. How much does a partition lawsuit cost?
Our firm charges $500 for legal costs (ex. court filing fees) and $4500 for nonrefundable minimum legal fees for filing or defending a partition lawsuit. These amounts are due upfront. Our firm also offers a contingency option where legal costs and legal fees are paid from the proceeds from the sale of the property. You can read more about these fees and the partition process here.
6. Can I recover my attorney fees and costs?
The short answer is: Yes, if property is partitioned, attorneys’ fees and costs can be awarded by the Court commensurate with services rendered and benefit to the partition lawsuit.
7. Are there any defenses to a partition lawsuit?
Partition is a matter of right between co-owners. However, there may be equitable defenses available. In a partition lawsuit involving heirs, the Uniform Partition of Heirs Property Act contains provisions on how one co-owner can legally buy out the other co-owners.
8. Is the property required to be auctioned off in a partition lawsuit?
No, the property does not have to be auctioned off in a partition lawsuit. To maximize proceeds, the property can also be sold in a private sale via a Special Magistrate.
9. Who does the Court appoint to sell the property and how are they paid?
The Court appoints a neutral third party called a Special Magistrate to sell the property. The Special Magistrate is a licensed real estate broker and charges the standard real estate commission of 6% from the proceeds of the sale of the property.
10. Will I have to attend court in person?
Not usually. Partition cases are usually handled through the attorneys, and clients are not needed to attend court to get their case resolved. In rare instances, clients may be required to appear in court via Zoom to testify as to expenses.
11. What happens if all parties agree to sell the property after (or before) a lawsuit is filed?
If all parties agree to sell the property, our office would draft a settlement agreement appointing a Special Magistrate to sell the property. The settlement agreement could divide the proceeds on a percentage basis or reserve the right to determine entitlement to proceeds after the sale.
12. What happens if one owner wants to keep the property?
The best option would be a pre-suit mediation. A pre-suit mediation is a process for resolving the case through a buyout before the partition lawsuit is filed with the court. Once a partition lawsuit is filed, a buyout may be possible by post-suit mediation, judicial order, or by purchasing the property from the Special Magistrate. In a partition lawsuit involving heirs, the Uniform Partition of Heirs Property Act contains provisions on how one co-owner can legally buy out the other co-owners.
13. How are the proceeds distributed after the sale of the property?
Often, a settlement agreement can be reached. If not, the Court decides how proceeds from the sale are divided. Some factors used to determine how the proceeds are divided include percentage of ownership, expenses, improvements, repairs etc.
14. What happens to a mortgage or other liens in a partition lawsuit?
Proceeds of the partition sale will be used to satisfy any mortgages or liens. The remaining proceeds will be distributed among the co-owners pursuant to a settlement agreement or Court order.
15. Can I file a partition lawsuit myself?
Yes, an individual can file a partition action on their own. However, a partition lawsuit can be a complicated process and it is recommended that you hire an experienced real estate attorney to assist with cases like this.
16. Does your firm handle partitions throughout Florida?
Our firm handles partitions state-wide throughout Florida.
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
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