Last Update: 11/15/18
According to Florida case law as of the date of this article, in extreme cases, a judge can deny a partition if the judge determines that equity will not result if the remedy of partition is granted.
Is An Oral Agreement Not To Partition Florida Real Estate Enforceable?
Case Review: Condrey v. Condrey, 92 So. 2d 423 (Fla. 1957)
In 1940, Chase Condrey, Jr., and his wife, Frieda, moved onto land owned by his parents, Chase and Mamie Condrey. Chase Senior had a nice tract of land in Orange County, and there was a house on the back of the property that his son and daughter-in-law could call their home.
Junior and Frieda accepted the invitation, and moved into the property. Parents Chase and Mamie continued to live in the house at the front of the property.
Sometime after, Chase Junior decided to expand the dwelling. At his own expense, and with his dad’s okay, he converted the single family home into a duplex. Then he and Frieda acted as landlords to the new rental unit while continuing to live in the other half of the duplex.
Time passed. 1948 was a bad year for the Condreys. Both Mom and Dad Condrey were in accidents that year that left them disabled. Junior and Frieda moved up into their house at the front of the property to help them. They rented out their home in the duplex.
The rents helped the son and daughter-in-law pay for their parents’ living expenses while they were incapacitated.
The four parties alleged that for some time they discussed what should be done with their interests in the property. The son had invested several thousand dollars in the property and the parents were unable to contribute towards such expenses or even much towards everyday living expenses.
The four lived together in the parents’ home until 1953. During this time, Junior and Frieda collected rent on both units in the duplex, and used that rent money to pay all the household expenses as well as paying for the parents’ clothing and care. Junior and Frieda also paid the property taxes and property insurance as well as covered all the needed repairs and improvements.
In December 1953, things got ugly. Son and daughter-in-law moved off the land. They collected no more rent on the duplex, except for $112.00 which was placed into escrow. They did not cover any more of their parents’ expenses.
A few years prior, back in September 1949, the four had hired a lawyer regarding the land. There was a joint concern about Junior’s sisters. They weren’t involved in the daily care of their parents, but legally they might assert claims against the land and its improvements (like the duplex) if Senior and Mamie should die and the intestacy statutes were applied.
The lawyer’s answer was to have the parents convey the land to the lawyer and his wife. They turned around and conveyed the property to both plaintiffs and both defendants as tenants in common “with right of survivorship”. There was no language in this deed discussing any agreement for support, and the deed was silent regarding any express provision against partitioning the land. The family did not sign any separate written agreement covering either matter.
After the father and son had their “falling out”, Junior and Frieda filed a partition lawsuit. The parents counter-sued, asking the court to order Junior and Frieda to provide lifetime support pursuant to an oral agreement that had as its consideration the 1949 deal which created the tenancy in common with right of survivorship.
At trial, the partition was denied. The case was appealed, with Junior and Fried arguing that: (1) as tenants in common they are entitled to partition as a matter of right; (2) the evidence did not establish an oral agreement not to partition the lands involved; and (3) an oral agreement not to partition was unenforceable under the Statute of Frauds; it had to be in writing to be enforceable.
Unreasonable Restrictions on Use of Land
The appeals court found that while partition is a matter of right as a general rule, there are legal exceptions. The right to partition may be waived. It can also be blocked by an agreement not to partition. The agreement can be express or implied.
Any agreement to bar any partition of the land, or one which unduly or unreasonably restricts partition, is generally held to be unenforceable as a matter of law. Public policy demands it: these kinds of agreements are unreasonable restraints on the use and enjoyment of property.
However, an agreement not to partition during the life of any of the tenants was held not to be for an unreasonable time.
Oral Contract To Not Partition
There was evidence of the oral agreement not to partition the lands because while there was no money paid by plaintiffs as consideration for the deed of conveyance, there was evidence that the deed was executed in consideration of a verbal agreement where everyone was to live in the one house as a family; the rents from the duplex were to provide the necessary food, clothing and care for the defendants as long as either of them lived; and that none of family members were ever evicted from the premises.
As for the Statute of Frauds (Florida Statute 725.01), it does not apply because there had been part performance by the parents not to partition the tract when they entered into the conveyance to Junior and Frieda of an interest in the land.
The appellate found that in this situation, there were two elderly citizens, neither completely whole in physical health nor able to support themselves. It was not conceivable they intended to put themselves in position to be forced from their home, or to surrender the right to live there, under a partition action.
Equity Ruling Over Partition Statute
It was found that the court had the equitable right to refuse to partition the land because if the partition was granted, it would have been an unfair result. Accordingly, a court of equity has the right in its discretion to refuse to grant it.
Equitable denials of partitions are only to occur in “extreme cases or where where manifest injustice, fraud or oppression will result if partition is granted.”
Had it been Dad and Mom who had breached their agreement with their kids, and not Junior and Frieda who breached the deal, the appeals court opined that the partition would have been allowed, pointing to Forehand v. Peacock.
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