Causes of Action for Mandatory Partition of Real Property

A partition action is an adversarial lawsuit that can be initiated by any one or more of the property’s joint tenants, life tenants or tenants in common in probate or civil court.  Because venue for a partition action lies only in the county and state where real property is located, the court has inherent jurisdiction to compel the sale of real property inside its geographical boundaries.  Although the parties to a partition lawsuit include the owners of the property as well as all parties who may have their rights impacted by the partition action, the partition complaint must clearly identify the property in question, the owners or others with an interest in the property, the percentage interest in the property held by each owner, and any other matters necessary for the court to determine.

Chapter 64 of the Florida Statutes provides strict guidelines for partitioning real property.  Where a request for partition complies with the statute and is uncontested by the opposing parties, the court will order a sale in accordance with the parties’ respective interests if the property is indivisible and not subject to partition without prejudice to the other cotenants.  The court has three options for ordering partition sale of property that cannot be physically divided, namely (i) judicial sale by public auction pursuant to partition statute, (ii) private sale conducted by clerk or magistrate pursuant to statute, and (iii) private sale based on stipulation of the parties in accordance with procedure established by the court.  If the property can be partitioned by physically dividing it into separate parcels, in lieu of a forced sale, the court may appoint a commissioner as officer of the court to employ a surveyor and prepare a report with recommendations to the court of how to divide the property.

Exceptions to Mandatory Partition of Jointly Title Real Property

There are several circumstances where a court can lawfully refuse to partition real property.  If the facts of the case fall within one of these few exceptions, the cotenant maintain the right to remain use and occupancy of the property:

• the cotenants enter into an express or implied agreement not to partition the property;
• the court grants exclusive use and occupancy of the property to the former spouse and minor children of the cotenant until they turn 18 years old or graduate from high school;
• the cotenant executes a life estate deed in favor of a grantee;
• the court distributes the property as a marital asset as part of an equitable distribution, alimony award or dissolution of marriage plan; and
• to prevent manifest injustice in extreme cases where fraud, oppression, unclean hands, or overreaching that would result if partition were granted.

Ouster of Cotenants in Exclusive Possession of Real Property

A partition action is a useful tool to force removal of a cotenant owner who takes over possession or utilizes real property without the permission of the other cotenants.  Florida court decisions have held this type of adverse exclusive right of possession represents an ouster of the property that deprives the other cotenants from benefitting financially or enjoying use of the property.  If a cotenant owner (i) dies and their beneficiary obtains an adverse interest in the property or (ii) directly or indirectly communicates to the other out-of-possession cotenants that he or she intends to deprive them from beneficial use of the property, this also satisfies certain required legal considerations to consider their actions an ouster.

Determining the Effect on Setoffs and Credits in the Sale of Partitioned Property

While there is no specific statutory provision that requires setoffs and credits upon the sale of jointly titled real property for persons who are unmarried, Chapter 64 of the Florida Statutes and Florida law in support of jointly titled real property has been applied to permit credits and setoffs when unmarried cotenants sell real property by partition sale. Additionally, Florida Statute Section 61.077 sets forth criteria for determining when cotenants are entitled to apply credits or setoffs upon the sale of marital property. This statute has been interpreted as legal authority for the court to make findings of facts on entitlement to credits and setoffs upon sale of real property owned jointly by unmarried persons. While it should not necessarily be relied upon to determine setoffs and credits, the court has used it as a guideline to set off fair rental value of the property of any out of possession cotenants against a credit of the reimbursable household expenses incurred the in-possession cotenant to maintain the property.

• each cotenant has a legal right to possess and use the property during thier lifetime whether or not they reside at the property

• each cotenant has a right to improve the property without the other cotenants consent

• cotenants in common can avoid probate of thier interest in the property upon death if they convey thier interest by Last Will or Trust

• each cotenant is entitled to a prorata share of the net profits derived from renting the property

• cotenants may deduct thier prorata share of mortgage interest paid whether or not the debt is nonrecourse

• each cotenant may petition the court to partition the property by forced public or private sale or otherwise by physically dividing the property

• any cotenant residing at the property can apply for and claim constitutional homestead benefits and protect the property from forced sale by any cotenant creditors

• each cotenant can convey his or her share of the property by way deed without consent of the other cotenants