Posted By Larry Tolchinsky on November 12, 2013
Last Update: 08/01/16
Years ago, the Florida Legislature established specific laws for dividing up disputed Florida real estate by requiring the filing of a formal lawsuit in a civil court. (See Chapter 64 of the Florida Civil Practice and Procedures Code, which details the why, how, and when Florida real estate and land can be partitioned by court order or judgment.)
For example, Florida Statute 64.041 states:
The complaint shall allege a description of the lands of which partition is demanded, the names and places of residence of the owners, joint tenants, tenants in common, coparceners, or other persons interested in the lands according to the best knowledge and belief of plaintiff, the quantity held by each, and such other matters, if any, as are necessary to enable the court to adjudicate the rights and interests of the party. If the names, residence or quantity of interest of any owner or claimant is unknown to plaintiff, this shall be stated. If the name is unknown, the action may proceed as though such unknown persons were named in the complaint.
Partition actions are formal lawsuits filed at the courthouse that seek to have a judge divide or sell a piece of real property.
In Florida, unlike some other states, this right of an owner to ask the Florida court to break apart or sell an interest in real estate is undeniable; however, that doesn’t mean that there aren’t valid defenses to a Florida partition request. Issues need to be addressed, including has one party paid for the upkeep of the property (therefore entitled to reimbursement), or is the property being sold for a fair price and not to a party related to one of the owners, or has one owner lived in the property without paying fair market rent to the other owner?
Why file a lawsuit asking for partition of property?
There are many reasons why Florida property owners may decide that a partition of property rights in needed. One common example is when two people are divorcing and they cannot decide who should get what (or how much) real estate. Another common need for a partition action involves heirs or beneficiaries who have inherited Florida real estate and wish to break apart their common ownership. In both of these scenarios, a formal lawsuit is filed seeking to partition the property and, if granted, a court order is entered officially partitioning their rights and interests in the real estate (a home, condo or raw acreage, etc.). That court order is then recorded in the public records of the county where the property is located. Essentially, the order acts acts like a deed, conveying the property from one party to another.
Larry Tolchinsky’s Tip:
Partition actions can be very emotional conflicts between the parties. A lawsuit is filed just like in any other litigation — parties are served with a lawsuit by a process server – if there is a way to negotiate a partition of property without getting into an expensive and sometimes heart-wrenching fray, then that’s probably preferable way to handle matters for most everyone. Why?
Consider the partition case that was a family fight that went all the way to the Florida Supreme Court back in the late 1940s, the case of the Condrey Family (Condrey v Condrey).
Here, Dad and Mom Condrey invited Son and Daughter-in-Law Condrey to live in a house that sat on the back of Dad and Mom’s land. Dad and Mom had a house up front. Junior and Wife moved into the place, converted it into a duplex, and rented out the other half. With Dad’s okay, Son kept all the duplex rent money.
Sadly, eight years after this all happened, Mom and Dad became disabled in two different accidents. Being good kids, Son and Wife moved into Dad and Mom’s house up front to take care of them, and rented out their side of the duplex. The rent monies helped pay the living expenses of Son and Wife as they took care of Mom and Dad.
Everyone agrees that there was lots of talk between Mom, Dad, Son, and Daughter in Law about finances. For one thing, Son’s two sisters weren’t around but they might have a valid legal claim to part of all this land if something happened to Mom and Dad.
So the four did what you’d expect: they went and saw a Florida real estate lawyer.
In September 1949, Dad and Mom conveyed the land to the lawyer and his wife (WOW) who in turn conveyed the property to Dad, Mom, Son, and Daughter in Law as as tenants in common “with right of survivorship”. This deed had nothing to say about financial support or partitioning of the land. No separate contracts were created either.
Things went south, as you knew they would or there wouldn’t be a story here. In December 1953, Son and Wife moved away. Until they left, they had continued to take care of Dad and Mom and they had rented out that duplex in the back for money to cover household expenses for the four will they lived in the big house (as well as paying for property taxes, property insurance, repairs, and improvements).
Here came the lawsuit. Son and Wife sued for partition of the land; Mom and Dad answered back that there was an oral deal for lifetime support that was the consideration for them creating that tenancy in common with right of survivorship with the lawyer back in 1949.
The Florida Supreme Court ruled that the lower court decision was correct and that because of certain facts, including, but not limited to, that “right of survivorship” added to the tenancy description in the deed, there was an implied agreement between Mom, Dad, Son, and Wife that the land would not be partitioned.
Son and Wife lost.
From the Condrey opinion:
We are constrained to say also that under the circumstances presented in this case equity would not be done by ordering partition. We have two elderly citizens, neither completely whole in physical health nor able to support themselves. They own a home on which improvements have been made by a son, voluntarily, without expectation of payment except possibly through collection of rents from a rear building. A conveyance is made by the parents wherein a tenancy in common with right of survivorship is created between the parents and the son and his wife. It is not contended by the son that the conveyance was a gift or in payment of sums advanced for support of his parents or for improvements to the property, but rather only for the “protection” of his parents and himself and his wife.
It is not conceivable under these facts that the parents, defendants, intended by said arrangement to put themselves in position to be forced from their home or to surrender the right to live there. Obviously this would not be for the protection of the parents and could not have been, in our opinion, the intention of the parties.
A good piece of advice if you have a partition issue is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
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