By: Larry Tolchinsky, Esq.
In Florida, a partition of real estate is a bit of a misnomer.
Historically, if there were a vacant piece of land and a dispute arose between two or more property owners, a partition lawsuit could be brought to divide the lot into multiple tracts, giving each owner a separate plot of land.
Since vacant land in South Florida is virtually non-existent these days, the term “partition action” has evolved to take on a different meaning.
“You’re really not partitioning the property in the literal sense, because ‘partition’ means you’re dividing it up,” says partition attorney Larry Tolchinsky. “Because most properties in Florida have houses on them, the land is not really subject to partition because a house is not actually divisible. Today, what we mean is that the ownership of the title is what’s being partitioned.”
Reasons for Partitions
There are a variety of reasons a property owner may wish to file a partition lawsuit. Most often, when a partition action is brought, it’s due to a dispute that has arisen between the property owners.
“Maybe one person lives there, and the other person doesn’t and doesn’t want to pay rent,” Larry says. “Or maybe one person is renting it to someone else and keeps the rent. Or one person wants to go buy their own house and get a mortgage, and their name on the deed is affecting their credit, and the other owner won’t agree to the sale of the house. There are all kinds of scenarios.”
Most partition actions, however, involve an unmarried couple who have separated and cannot agree on what to do with the property. Another common situation is when two people are the beneficiaries of an estate and jointly inherit property.
“It usually winds up where one party buys out the other, or they agree to the sale of the property,” Larry says. “It’s not always that easy, though. These cases can drag on for a while sometimes.”
A Partition Action Case Study
As an example, Larry refers to a case he’s working on that is in the final stages of disposition.
“A man and a woman who were never married, but have three kids together, bought a property in the 1990s,” Larry says. “The property was originally in his name, but he put the title in both their names because she wanted it that way.”
When they separated years later, she wanted the property sold, but he didn’t.
“He wanted to keep the property, but she had moved to North Carolina with the kids, and no longer wanted to be on the deed,” Larry says. “So, she filed a partition case. She wanted off the mortgage and wanted him to refinance. She wanted to get a new mortgage but needed her name off the old one. It was hard for him to refinance and he just didn’t want to do it. He kept saying he would, but he never got around to it.”
Then, a discovery was made that helped move the case along.
“The deed where he put her name on the property wasn’t recorded correctly,” Larry says. “And he said he never signed it. The page where he signed it wasn’t in the official records—it was just the front page of the deed. He didn’t know that our client, who is pretty sharp, got a copy of the deed from the bank, which showed, basically, that the guy lied.”
When he saw the document, the man claimed it wasn’t his signature, even though Larry had examples of his signature on other documents and they were identical.
Faced with the overwhelming evidence, the man finally agreed to refinance the property once and for all.
“In this case it dragged out longer than it should have,” Larry says. “But closing is supposed to happen soon, and if it doesn’t, they’ve agreed to sell the property with my client getting a certain amount of proceeds, plus attorneys’ fees.”
Partition Action Myths
Although it is technically a lawsuit, there is no defense to a partition action the way there is in other legal proceedings.
“The dispute usually becomes how to get rid of the property: public sale, private sale, or one person buying out the other, which is usually the best way to do it,” Larry says. “The issue of distributing the net proceeds is part of it, as is who’s contributed more to the property and who gets certain credits. Things of that nature are very common.”
Another misconception about partitions is that they can be “fought” in court. The reality is that a property owner is automatically entitled to a partition, if they want it.
“It’s different for married couples who are separating,” Larry says. “If it’s a married couple, you can’t just go file a partition lawsuit. If you want to partition the marital home, you have to bring that as part of a divorce proceeding. You have to specifically do a count for partition as part of the divorce. There’s still such thing as partition, but it’s usually incidental to the divorce and you have to specifically ask the court—it’s almost a separate count—to partition the property. Then the judge can determine what’s to be done with the property.”
The Best Outcome for Everybody
In most partition actions, Larry says, it’s usually in the best interests of all parties to reach an amicable agreement about what to do with a property before the court gets involved.
“The worst-case scenario is when the judge has to appoint a commissioner or a magistrate and that person has to get paid, and that person then hires a Realtor®, who also has to get paid,” he says. “You just try to tell your client it’s a matter of dollars and cents and that they want to spend as little as possible.”
The good news for those bringing a partition action is that they are rarely denied by the courts.
What to Do Now
Larry Tolchinsky has been helping people in Florida with real estate issues and partition actions for decades. He Has experience filing partition lawsuits and defending them.
Even if you live outside of Florida or the United States and want to pursue a partition action for property you jointly own with someone else in Florida, Larry can help. If you have a concern about a property for which you share ownership, contact our offices for a free initial consultation.
Do You Have a Question?
Please fill out the “Talk With Us” form at the top of this page, call our office at 954-458-8655 or send Larry an email through our contact us form. He promises to get back to you promptly.
