Florida Real Estate Partitions And Underwater Mortgages: Are They Connected?

Posted By on March 4, 2014

Last Updated: 08/01/16

Recently, we had a blog comment asking about the value of real estate and whether or not an underwater home should or can be partitioned under Florida law. Asked another way, is the value of real estate, and equity in the property, a factor in a decision (or demand) to partition property in Florida?

Here’s an example where real estate values may impact a partition action: consider our hypothetical of an underwater residential property here in Hallandale Beach, let’s say a pretty beachfront condo, and a couple who are splitting up – we will call them Ben and Virginia.

 

Sunset in Hallandale Beach


 

1. Partitioning Real Estate in Florida: Florida Statutes Chapter 64 Controls Partitions

The Florida Legislature passed a series of laws several years ago that determine how real estate is to be divided in a partition. Found in Chapter 64 of the Florida Civil Practices and Procedures Code, the statutes mandate that all partition actions are to be filed in “any county where the lands or any part thereof lie which are the subject matter of the action,” Florida Statute 64.022, and that a partition action is a lawsuit that can be filed by any of the owners of the land: i.e., “one or more of several joint tenants, tenants in common, or coparceners, against their cotenants, coparceners, or others interested in the lands to be divided.Florida Statute 64.301.

The complaint itself must provide a description of the land as well as identify by name and address all the owners and the percentage of ownership they have. (Florida Statute 64.041). The court’s judgment is also legally required to contain certain specifics, such as the specific rights and interests of each of the parties as well as a specific ruling that the parties are entitled by law to a partition of the property. (Florida Statute 64.051) If the court finds that the property is not divisible for some reason, then the law provides that the court must appoint a special magistrate or clerk to sell the property with the sales proceeds paid into the court and thereafter divided among the parties according to their proportionate interest in the property. (Florida Statutes 64.061, 64.071)

However, the specifics of determining the fair market value of the land subject to a partition action is never mandated in Chapter 64 of the Florida Statutes.

2. Land Values and Partitioning in Florida

Partitioning real estate and land relates to the issue of ownership – who owns what interest and why. Partitioning real estate separates co-owners, whether they are siblings, business partners, friends, couples, or husbands and wives. It is a legal action where a court judgment is entered that severs undivided and coexisting interests in real property. The value of the land — it could be worth millions or it could be swampland — does not bear on the law of who holds legal title to it.

However, land value can be a factor in deciding to seek a partition such as when the property’s value has fallen below the mortgage balance – like in our recent case.

3. Changes in Market Value of Florida Real Estate Can Spur a Request for Partition of Real Estate

There have been certain periods of time when land values have changed dramatically — just recently, we all experienced the historic upswing in Florida real estate values to only be followed by a overwhelming fall in Florida’s real estate marketplace. When prices boom, or bust, the incentive to partition co-owned property increases.

For example, returning to our case of Ben and Virginia, they are in the middle of a divorce and one of their assets is a Hallandale Beach condominium. They own this real estate together as undivided, joint owners. However, the property is underwater: the value of the condo on the current real estate market is much less than the mortgage balance.

With a large mortgage on the property held by a bank or Florida mortgage lender, one of the spouses, Virginia, wants to sell the property in a short sale — particularly after the Florida lender has agreed that the bank will write off the deficiency if the owners can get the condo sold quickly.

Virginia is happy to do the short sale; Ben is not. Result? A partition action to resolve the issue is filed as part of their divorce proceedings – the judgment of partition results in the short sale proceeding after Virginia, the spouse who was interested in selling, is granted full title to the property or Ben is forced to sell the property to the Buyer.

A partition doesn’t only apply to married couples – any party that is involved in a relationship that has gone bad, where they have a co-interest in real estate, can seek a partition – if your ex-friend, ex-business partner or ex-significant other, doesn’t want to cooperate with short selling your underwater property – a partition action may be your only answer.

What Should You Do?

My advice for those who have been through a divorce or broken relationship and want to unburden themselves from the real estate obligations they entered into while with that person, specifically the family home and mortgage, is to seek the advice and help of a Florida real estate lawyer with experience not only in real estate matters but divorce related issues as well. Cases involving the sale of a former partered residence can be difficult to resolve (including knowing how to correctly allocate expenses and lost revenue between the parties) and an aggressive yet compassionate approach can be vital in fairly resolving these disputes.

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.

If you would like more information on partition actions under Florida law, please refer to our resource page on partition lawsuits, or look over our sample partition complaint.

Also See:

Inherited Property and Partition: When Your Brother or Sister or Other Heir Won’t Agree to the Sale

Selling the House After a Florida Divorce: Is Partition the Answer?

Is Sharing Ownership of Florida Real Estate Causing a Problem For You? – Partition Actions in Florida

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Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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Comments

4 Responses to “Florida Real Estate Partitions And Underwater Mortgages: Are They Connected?”

  1. Wm. Newt Hudson says:

    I am an attorney in Pinellas County presently pursuing a partition action. An issue has arose concerning the right to partition property in which there is no equity. I agree with you that the land value has nothing to do with the right to partition, but I have been unable to locate any cases or other authorities which directly address the issue. Are you aware of any? Thanks for any reply.

  2. Hello there, Newt!
    Happy to chat with you about this — give me a call (see the toll free number above?) for a chat?
    Thanks,
    Larry

  3. robin says:

    Hi what will happen if our partner mortgaged his half and we paid cash for our portion? 50% of sale may not be quite enough to pay off his mortgage. Thanks

  4. Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat.
    Thanks,
    Larry

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