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.