Partition of Florida Homestead Property

Posted By on June 27, 2017

In Florida, “homestead property” is residential real estate which is occupied by a person or family as their permanent residence.

The legal concept of “homestead” is provided by the Florida constitution.  Its purpose is to stop the family home, or homestead, from being sold to pay off debts incurred by the land owner.  Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978).

As explained by the Florida Supreme Court, the law recognizes three kinds of homestead protections:  (1) homestead tax exemption; (2) homestead protection from sale by creditors; and (3) homestead restrictions on the sale or devise of the property by a co-owner.    Snyder v. Davis, 699 So. 2d 999, 1001-02 (Fla. 1997).

 

Constitutional Protection of Florida Homestead Property

The constitutional protection afforded homestead property is a part of the Florida Constitution under Article X, Section 4

Of particular importance is section 4(a) of this constitutional provision, which states

(a) “There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon…”

As a general rule in Florida, a creditor of a homeowner cannot partition or force the sale of property if the property has “homestead” protection (exceptions include mortgage holders, construction liens and liens for ad valorem real estate taxes).

However, there are exceptions. For example, certain co-owners can “partition” and force the sale of the homestead property to a bona fide purchaser.

What is a Partition?

A partition of real estate involves breaking the property into separate ownership interests.  That means, legally dividing the property to terminate the shared ownership and forcing the sale of the real estate.

For more detailed information about Florida partition lawsuits, read:

Partition of Florida Homestead Property

In order avoid violating the Florida Constitution, Chapter 64 of Florida Statutes along with Article X, Section 4 must be followed when it comes to partitioning Florida homestead property.

Real Estate Owned By Husband and Wife

The general rule for a Florida homestead is if both husband and wife are living, then the homestead property can only be sold if they both sign a deed. Furthermore, a creditor of either of them, or both, cannot force the sale of the homestead. That protection from the forced sale of the property is the essence of the homestead protection. This is true even if just one of their names appears on the deed.

Why?  In Florida, when a married couple buys or owns a home or condo which they use as their residence, then under the Florida constitution the homestead protection against the forced sale of the property attaches to the property.  It doesn’t matter if they bought the property together or one person owned the property before they are married. Once they are married, and they reside in the property, the homestead interest attaches to the property preventing the forced sale of the property.

Can one spouse force another spouse to sell the home? Can one spouse sell the homestead without the other spouse’s permission? 

The simple answer is no, the property can only be sold if they both agree and they each sign a deed. However, there is a way for one spouse to force the sale of the family home: the husband and wife can get divorced.  In the event of a divorce, the ownership interest changes to “tenants in common” which means each party has a separate transferrable interest in the property.

Read: How Do You Terminate The Joint Tenancy of Florida Real Estate?

Can A Co-Owner of Real Estate, Who Is Not Married To The Other Co-Owner, Use The Homestead Protection To Prevent The Partition of The Property?

Married couples are not the only ones who can share a joint interest in residential real estate in Florida.  Business partners or heirs of an estate can jointly own real estate.  These non-married parties can co-own real estate in Florida as “tenants in common” or as “joint tenants with right of survivorship.”

Even in these situations, the homestead protection can still be used to protect the property from a forced sale by a creditor even though the co-owners are not married (at least a portion of the property can be protected – that portion used by a co-owner as their primary residence).

(Note: The Florida Constitution does have a requirement for the use of the homestead protection against the forced sale and that is that the protection applies to real estate owned by a human being (a “natural person”) and not a corporation or LLC.)

So, can a co-owner who isn’t married use the homestead protection against the other co-owner to prevent the forced sale or partition of the property?  If the homestead protection applies to one of the co-owners, then how can their co-tenant partition and force the sale of the real estate?   

This issue was addressed in Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978).  There, the Florida Supreme Court held that the Florida “constitutional provisions allow the partition and forced sale of homestead property upon suit by one of the owners of that property.”  There is nothing in the law that prevents a co-owner “from suing for partition and obtaining a forced sale in order to obtain the beneficial enjoyment of her interest in the property.” Tullis, 360 So. 2d at 375.

Also see, Wescott v. Wescott, 487 So. 2d 1099 (Fla. Dist. Ct. App. 1986).

In Tullis, Don and Shirley Tullis were a married couple who owned their home here in Florida.  Don’s young daughter from a prior marriage lived with them.

Over time, they decided the marriage wasn’t working, so they filed for divorce.  Don and his daughter stayed in the home and Shirley moved out.  Their divorce decree didn’t explain how their family home would be handled, ownership-wise.  So, Shirley filed a new lawsuit to partition the property so it could be sold.

Don fought against Shirley’s partition, arguing that the homestead protections kept her from forcing a sale of the home.  Everyone agreed that the property couldn’t be divided. Meaning, it would have to be sold if Don wouldn’t buy out Shirley’s interest.

Shirley won at both the trial level and at the appellate level.  Then, the Florida Supreme Court ruled in her favor as well.

The Florida Supreme Court pointed out that the couple had divorced and now they were two common owners of the real estate.

Therefore, they were now like any other co-tenants; meaning, Shirley could sue for partition and force the sale of the land.

Are You Considering Partitioning Homestead Property in Florida?

If you own a home or condo in Florida and share an ownership interest, then you need to know if any kind of homestead protection applies to your real estate.

  • If it does, then are you prohibited from selling it?
  • Are you protected against creditors forcing a sale?

If you are thinking about partitioning your residential real estate, then a good piece of advice is to 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.

Want more information on partition actions under Florida law?  Check out our resource page on partition lawsuits, and feel free to download and study our sample partition complaint.

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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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