Florida Special Magistrate for Partition Sales

Court-Appointed Sale Officer Under § 64.061(4), Fla. Stat. – Available Statewide

Stephen K. Hachey is a Florida-licensed real estate broker, an active real estate litigation attorney, and a Florida Bar member since 2005. He accepts statewide appointments as Special Magistrate under section 64.061(4), Florida Statutes. His role is precise. He sells indivisible real property in partition actions.

Under § 64.061(4), Florida Statutes, the court may appoint a special magistrate to sell the property when the pleadings contain an uncontested allegation that the property is indivisible or when the court enters a judgment of partition and determines that the property cannot be partitioned without prejudice to the owners. This transaction can occur privately or under section 64.071, Florida Statutes.

Private sales managed by a licensed broker consistently generate higher returns than statutory courthouse auctions. Mr. Hachey delivers exactly this result. He engages the broker. He supervises the listing, reviews contracts, and coordinates with closing agents. Finally, he files the Report of Sale with the court and recommends how to disburse net proceeds based on the fractional interests established in the judgment.

Florida partition cases do not strictly require the traditional sequence of a judgment followed by appointing commissioners to decide on a sale.

For clearly indivisible property like a single-family residence, Florida law offers a direct path.

The key provisions are sections 64.051 and 64.061(4), Florida Statutes.

The Section 64.061(4) Special Magistrate – Distinguished From a Rule 1.490 Magistrate

Judges and counsel must recognize that “special magistrate” appears in two distinct procedural contexts.

• Section 64.061(4), Florida Statutes, authorizes a partition-specific sale officer when the pleadings contain an uncontested allegation of indivisibility or when a judgment of partition determines that the property is indivisible. The role is purely operational. Sell the property and report the sale for court confirmation. The statute previously used the term “special master” before a 2004 amendment (ch. 2004-11, section 55, Laws of Florida) updated the label. The actual function remains identical.
• Florida Rule of Civil Procedure 1.490 governs general civil magistrates. Courts appoint these officers to take evidence, hear contested issues, and issue recommendations to the trial judge. This page does not address that general role.

Mr. Hachey accepts appointments exclusively under section 64.061(4) and the parallel sale procedures of the Florida Uniform Partition of Heirs Property Act, sections 64.201-64.214, Florida Statutes. He does not solicit general Rule 1.490 magistrate assignments.

What Does Section 64.051 Require?

Section 64.051 dictates how a court determines rights in a partition action.

The court must adjudicate respective ownership interests and order partition if the parties hold a legal entitlement. The statute also permits the court to move forward when the plaintiff’s ownership is undisputed, reserving other complex interests for later resolution. (Online Sunshine)

During this phase, the court resolves specific core issues:

• Whether the plaintiff has a legal right to partition;
• The exact ownership percentages; and
• Whether to terminate the co-ownership.

However, courts can often appoint an officer to sell an indivisible property without first entering a separate judgment under section 64.051.

Section 64.061(4) Creates a Direct Route to Sale

Historically, section 64.061 requires appointing three commissioners post-judgment to physically divide the real estate. (Online Sunshine)

This makes perfect sense for a sprawling tract of vacant land.

It completely fails for a single-family home.

Section 64.061(4) offers a logical alternative. The court can appoint a special magistrate or the clerk to sell the property upon motion and notice if the pleadings contain an uncontested allegation of indivisibility.
The court can also invoke this exact procedure after a partition judgment includes a finding of indivisibility. (Online Sunshine)

The statute provides two clear pathways:

Uncontested indivisibility -> Special Magistrate may be appointed
or
Judgment of Partition + finding of indivisibility -> Special Magistrate may be appointed

A separate partition judgment is not a strict prerequisite for appointment when all parties agree the property cannot be divided.

Marks v. Stein Confirms the Procedure

The Second District Court of Appeal clarified this mechanism in Marks v. Stein, 160 So. 3d 502 (Fla. 2d DCA 2015).

The court ruled the traditional commissioner procedure found in sections 64.061(1)-(3) is unnecessary given an uncontested allegation of indivisibility.

Section 64.061(4) allows the court to immediately appoint a special magistrate to run the sale. (Justia Law)

Marks does not absolve the court from finalizing ownership interests or partition entitlement. It simply stops the court from forcing litigants through a pointless commissioner process when everyone already agrees a physical split is impossible.

Why Appoint a Section 64.061(4) Special Magistrate

Section 64.061(4) offers two main options to liquidate indivisible property. The court can appoint a special magistrate for a private sale, or direct the clerk of court to sell it under section 64.071.

Selecting a special magistrate for a private sale routinely yields clear advantages:

• Higher net to the parties. A private sale marketed on the MLS by a licensed broker brings in substantially more revenue than a rushed courthouse auction. Cotenants walk away with a better return.
• Crowded dockets are relieved. The special magistrate handles listing oversight, price drops, contract reviews, and closing coordination without eating up hearing time.
• Subject-matter fluency. AA special magistrate who holds a Florida real estate broker’s license brings deep tactical experience to pricing, broker selection, and closing mechanics.
• Predictable cost. Parties usually share the magistrate’s fee upfront. The court reserves the right to reallocate this cost in the final judgment under section 64.081, Florida Statutes.
• UPHPA-compatible. The Florida Uniform Partition of Heirs Property Act (sections 64.201-64.214, Fla. Stat.) requires a court-appointed broker to run an open-market sale. The special magistrate steps into this framework smoothly.

What Does This Mean for a Typical Florida Partition Lawsuit?

Picture a standard scenario. Two individuals own equal shares of a single-family home.

Nobody disputes the facts:

• They are both owners;
• The house cannot physically be split down the middle; and
• A sale is the only exit strategy.

Appointing three commissioners to inspect a suburban kitchen and debate how to physically divide a garage wastes time and money.

Section 64.061(4) bypasses that bureaucratic dead end. The court appoints a special magistrate to manage a private transaction.

The resulting court order empowers the magistrate to market the real estate, coordinate buyers, negotiate the terms, sign the contract, and execute the closing.

Scope of Services as Special Magistrate

Operating under the order of appointment (via section 64.061(4) or UPHPA provisions), Mr. Hachey executes specific duties:

• Engagement of a Florida-licensed real estate broker to list the property under magistrate-approved terms.
• Approval of the listing price, marketing strategy, and tactical price reductions to align with market realities and court orders.
• Review and approval of offers and the resulting sale contract, including negotiation of inspection, financing, and closing-cost provisions.
• Coordination with the title insurer, closing agent, and lender to ensure timely mortgage payoff, clean title delivery, and accurate seller deliverables.
• Review of the closing statement and verification that closing costs and prorations are properly calculated.
• Filing of a Report of Sale with the court, with the net proceeds of the sale of the property.
• UPHPA open-market sale procedures under §§ 64.201-64.214, Fla. Stat., where the property is determined to be heirs property, including coordination with the court-ordered appraisal and the cotenant buyout election.

What Happens to Credits and Offsets?

Selling the property does not force the court to settle every financial grievance first.
Disputed mortgage payments, property taxes, insurance premiums, maintenance bills, and rental value offsets can wait.
Section 64.051 explicitly allows courts to defer these adjustments. (Online Sunshine)

Courts routinely deploy this sequence:

Judgment of Partition -> Special Magistrate Sale -> Accounting for Credits and Offsets -> Distribution of Net Proceeds

This logical timeline stops petty accounting battles from stalling the actual real estate transaction.

Qualifications

• Florida Bar member since 2005 (Bar No. 15322); active in good standing.
• Florida-licensed real estate broker, providing direct fluency in listing procedures, market valuation, contract review, and closing coordination – the substantive skills central to selling partition property under § 64.061(4).
• Twenty years of focused Florida real estate practice, including active representation of plaintiffs and defendants in partition actions throughout Florida.
• Currently serving as Special Magistrate in Florida partition matters.
• Florida-licensed title insurance underwriter, with working knowledge of title chain analysis, title commitments, and closing procedures relevant to partition sales and heirs-property matters.

Have Questions?

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Statewide Availability

Mr. Hachey accepts appointments in any Florida circuit.

Status conferences and any required hearings are conducted in person, by Zoom, or by hybrid format at the parties’ or the court’s preference. Travel is available statewide for in-person evidentiary proceedings where required.

Engagement and Fees

Mr. Hachey serves as Special Magistrate on a reasonable hourly basis. The order of appointment specifies scope, fee, retainer (if any), and allocation of fees between the parties. Initial fee allocation is typically equal between the parties, with reallocation possible in the court’s final judgment under § 64.081, Fla. Stat.

How to Appoint

Section 64.061(4), Florida Statutes, authorizes appointment on motion of any party and notice to the others when the pleadings contain an uncontested allegation of indivisibility or when the court has entered, or simultaneously enters, a judgment of partition finding the property indivisible. Appointment is straightforward:

1. By stipulation: The parties file a Joint Motion or Stipulation for Appointment of Special Magistrate Under § 64.061(4), Fla. Stat., identifying Mr. Hachey, the scope of authority, and the proposed fee allocation.
2. On motion of a party: Either party files a Motion for Appointment of Special Magistrate Under § 64.061(4), Fla. Stat., with notice to the other side as required by the statute.

Why Request Both a Judgment of Partition and Appointment of a Special Magistrate?

An uncontested indivisibility claim allows a magistrate appointment before a formal partition judgment. Still, requesting both simultaneously offers strong strategic value.

Filing a single “Motion for Judgment of Partition and Appointment of Special Magistrate” lets the judge resolve the entire sale mechanism at once.

The court can efficiently dictate:

• The exact ownership percentages;
• That the plaintiff is legally entitled to partition;
• That the real estate is indivisible;
• That partition by sale is the correct remedy; and
• That a special magistrate will execute that sale.

This builds a bulletproof record. It proves particularly useful when one owner argues about unrelated accounting issues even while admitting the house itself cannot be cut in half.

A sample Consent to Appointment is provided below for the convenience of the bench and bar. Counsel are welcome to adapt it for their case.

To confirm availability before filing, contact Mr. Hachey directly at (813) 549-0096.

Sample Consent to Appointment of Special Magistrate Under Section 64.061(4), Fla. Stat.

The following is provided as a starting point for counsel and the court and should be adapted to the specific case and the appointing judge’s preferences. It’s not legal advice and doesn’t establish an attorney-client relationship.

CONSENT TO APPOINTMENT OF SPECIAL MAGISTRATE

COMES NOW, the undersigned, STEPHEN K. HACHEY, and hereby consents to his appointment as Special Magistrate in connection with the above-styled action for Partition of Real Property and related relief. The undersigned affirms he:

1. Is an attorney in good standing and duly licensed to practice law in the State of Florida.
2. Has no conflict of interest that would prevent him from serving as Special Magistrate.
3. Agrees to serve as Special Magistrate on reasonable fees and costs approved by the Court or agreed to by the parties, payable from the proceeds of the sale of the property.

______________________

Stephen K. Hachey, Esq.

Selected Florida Authority

• Section 64.061(4), Fla. Stat. – Appointment of special magistrate where property not subject to partition
• Section 64.071, Fla. Stat. – Sale where nondivisible
• Section 64.081, Fla. Stat. – Costs, taxes, and attorneys’ fees in partition
• Sections 64.201-64.214, Fla. Stat. – Florida Uniform Partition of Heirs Property Act
• Chapter 2004-11, Laws of Florida, Section 55 – amendment substituting “special magistrate” for “special master” in Section 64.061
• Marks v. Stein, 160 So. 3d 502 (Fla. 2d DCA 2015).

Frequently Asked Questions

What’s the difference between a Special Magistrate under § 64.061(4) and a magistrate under Florida Rule of Civil Procedure 1.490?

They’re different roles that share a label. A Rule 1.490 magistrate is a general civil officer who hears evidentiary matters and issues Reports and Recommendations to the trial court. A § 64.061(4) special magistrate is a partition-specific sale officer appointed after a judgment of partition has determined the property to be indivisible, with the narrower function of selling the property and reporting the sale to the court for confirmation. Mr. Hachey accepts § 64.061(4) appointments and the parallel UPHPA open-market sale appointments. Not general Rule 1.490 magistrate work.

When is a § 64.061(4) special magistrate appointed?

A special magistrate may be appointed on motion of any party and notice to the others when the pleadings contain an uncontested allegation that the property is indivisible and cannot be partitioned without prejudice to the owners. Alternatively, the court may appoint a special magistrate after entering a judgment of partition and determining that the allegation of indivisibility is correct.

Can a Florida Court Appoint a Special Magistrate Before Entering a Judgment of Partition?

A separate partition judgment is not always a mandatory prerequisite. If the pleadings feature an uncontested allegation that the real estate is indivisible, the court can jump straight to appointing a special magistrate. Marks v. Stein proves the traditional commissioner sequence is useless here. (Online Sunshine)

If parties actively dispute the right to partition or the property’s indivisibility, the judge should determine those rights

Why a private sale through a special magistrate rather than a clerk’s sale under § 64.071?

Both options are available under the statute. A private sale managed by a Florida-licensed real estate broker, marketed through the MLS, typically produces a meaningfully higher price than a courthouse-style sale. That directly increases the net proceeds available to the cotenants.
The trade-off is a longer marketing window. Typically ninety to one hundred eighty days from listing to closing, depending on local market conditions.

Does the Special Magistrate hire the listing broker, or do the parties?

The order of appointment governs.
Mr. Hachey’s standard practice (reflected in the sample order above) is for the Special Magistrate to engage the listing broker on terms approved by the Magistrate. This eliminates the most common pre-listing dispute and ensures the broker reports to a single neutral throughout the listing period.

Will Mr. Hachey accept appointments where he has no prior connection to the parties or counsel?

Yes. As with any neutral appointment, Mr. Hachey conducts a conflicts check before accepting and discloses any potential conflicts to the court and the parties. Mr. Hachey will not engage his own brokerage or any affiliated entity as the listing broker on a matter in which he serves as Special Magistrate.

Does the court still confirm the sale?

Yes. The Special Magistrate files a Report of Sale, the parties have an opportunity to object, and the court enters an order confirming the sale and approving disbursement of net proceeds. The court retains full authority over the final sale and distribution.

Is Mr. Hachey available in counties outside the Tampa Bay area?

Yes. Appointments are accepted statewide, and remote status conferences are routinely conducted by Zoom where the parties and the court agree.

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