Author Archives: Tanishia Stokes

What is Partition of Real Property?

When two or more co-owners of real property disagree over its use or management, one mechanism to resolve such disagreement is by partition. Partition of real property is a formal legal proceeding governed by Chapter 64, Florida Statutes. There are two types of partition: (i) partition “in kind,” where legal title to the property is divided among the owners in an equitable manner (i.e., each owner will own a fraction of the divided property); and (ii) partition by sale, where the property is sold at auction and the proceeds are equitably distributed among the owners (i.e., each owner will receive a share of the proceeds). Partition by sale may occur if the court concludes that partition in kind cannot occur without prejudice to the owners. In the case of a partition by sale, the court may order the associated fees and costs to be paid out of the sale proceeds. In addition, any state, county, and municipal taxes due at the time of the sale must be paid from the proceeds.

When Is Partition Appropriate?

Co-owners of real property often disagree about the use, management, or other aspects of real property ownership. Perhaps one owner desires to sell the property for an immediate profit, but another owner wants to wait to see if the property will further appreciate. Maybe one owner intends to develop unimproved real property, but the other owner wants to keep the property in its natural state for recreational purposes. Perhaps the property is encumbered by a mortgage, and the co-owners cannot agree about whether to pay off mortgage debt or refinance debt. If co-owners cannot resolve such matters among themselves, then formal partition may be appropriate.

Who May File for Partition?

A lawsuit for partition may be filed by either a natural person or a corporate entity. The lawsuit may be filed by one or more joint tenants, tenants in common, or coparceners (joint heirs), or others interested in the lands to be divided. However, a lawsuit for partition may not be filed by one married spouse against another if the married couple owns the property as tenants by the entireties.  Dissolution of the marriage transforms the property ownership into tenants in common, and thereafter the property may be partitioned. In addition, interests which are merely successive, and not concurrent, are not partitionable.  This means that a remainderman may not maintain an action for partition against the holder of a life estate (and vice versa).

While the general rule is that partition of real property by a co-owner is a matter of right, the right to partition may be waived by agreement.  Nevertheless, an agreement not to partition must be for a reasonable and definite period of time and not otherwise unduly restrictive.

Where is the Partition Lawsuit Filed?

The lawsuit for partition must be filed in the county where the real party or any part thereof is located. Partition is an in rem cause of action and is subject to the local action rule, notwithstanding where the co-owners reside.  Where the lawsuit for partition cannot be personally served on a co-owner, service of process by publication is permitted by Section 49.021, Florida Statutes.

21 Principles For Maximizing Profit & Operating a Successful Business

1. Create a Business Plan
2. Employ an Efficient Staff
3. Maintain a Modern & Professional Business Image
4. Utilize Professional Services
5. Start Early & Promptly
6. Be Prepared and Available for Change
7. Be Diligent
8. Seek Wisdom & Counsel
9. Stay Well-Informed
10. Be a Good Financial Manager
11. Maintain an Efficient Office
12. Keep an Open Line of Communication with Staff
13. Respond Promptly
14. Give All Clients and Customers the Attention They Deserve
15. The Bump – Be Courteous
16. Serve Your Clients and Customers
17. Remain in Good Standing with Creditors
18. Terminate Products and Services That Are No Longer Efficient
19. Pay Yourself and Employees Well
20. Show Appreciation and Gratitude
21. Give Back to the Community

While foreclosures in Florida have significantly decreased, many properties on the market still require review of foreclosure cases in the chain of title.  Third-party investors acquired properties across Florida at foreclosure sales, and are now selling these properties for a profit.  Unfortunately, some investors did not review the foreclosure file or perform a title search prior to binding at the sale and therefore did not discover errors made during the foreclosure action.  Purchasers should be cautioned to examine and review the foreclosure in advance of purchasing the property in foreclosure or post-foreclosure to make sure that title to the property is insurable and that any defect discovered through examination can be resolved prior to closing.

Closing Location; Documents; and Procedure

Part 1 of Section I discusses the location of the Closing and the Closing documents. The Location of the Closing must be in the county where the Property is located at either an attorney’s office or the Closing Agent’s office. It can be done by mail or electronically. The Closing documents must be signed and delivered by the Seller prior to the Closing. These documents include the deed, the bill of sale, certificate(s) of title or other documents necessary to transfer title to the Property, construction lien affidavit(s), owner’s possession and no lien affidavit(s), and assignments of leases. The Seller is required to provide the Buyer with paid receipts of all improvements done to the property that is outlined in the Contract. The Buyer in turn is required to furnish and pay for the survey, flood elevation certification and the other documents that are required by the Buyer’s lender.

Conveyance

Part H of Section 18 states what the Seller is conveying. Seller is required to convey to the Buyer marketable title to the Real Property. Seller’s marketable title is conveyed by statutory warranty. This is subject only to the matters underlined in Standard A of the Contract and those accepted by the Buyer. Personal property must be transferred by bill of sale with warranty of title, subject only to provisions within the Contract.

Force Majeure

Part G of Section 18 discusses the concept of Force Majeure. Force Majeure is defined as occurrences that are not reasonably within the control of the Buyer or Seller such as acts of God, hurricanes, earthquakes, floods, fire, or unusual transportation delays, wars, insurrections, acts of terrorism, etc. When these situations occur, Buyer or Seller will not be required to perform any obligation under the Contact or be held liable for damages to the other party as long as the performance or non-performance of the obligation was the result of Force Majeure. The time periods of the Contract will be extended for the period of time the Force Majeure has prevented performance under the Contract. However, if performance was prevented for more than 14 days after the Closing date, any party has the ability to terminate the Contract by delivering written notice to the other party. The deposit will also need to be refunded and the Buyer and Seller will be released from all further obligations under the Contract.

Time

Part F of Section 18 discusses the time of the Contract. The section states that Calendar days will be used to calculate all time periods within the Contract. Time is of the essence in this Contract. All time periods specified in the Contract, with the exception of the time for acceptance and the Effective date, will extend to 5:00pm of the next business day at the location of the property if a time period ends on a Saturday, Sunday, or national legal holiday.

Liens

Part E of Section 18 discusses Liens. The Seller is required to sign an affidavit stating that 1) there are no claims of liens or potential lienors to the Seller’s knowledge and, 2) no repairs have been undertaken in the property for 90 days prior to Closing Date. If the real property was improved during the 90 day time period prior to Closing, Seller must give the Buyer the releases or waivers of any construction liens that are signed by all the contractors, subcontractors, suppliers, and material men involved. A second Sellers’s lien affidavit must also be signed that states the names of all the contractors, subcontractors, suppliers, and everyone involved in the repair that confirms that all charges of these repairs and improvements that could result in a construction lien have been paid or will be paid at Closing.