Options for Vesting Title and Partaking in Partition: A Brief Introduction to Florida’s Partition Laws.

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Options for Vesting Title and Partaking in Partition: A Brief Introduction to Florida’s Partition Laws.

As every mindful real estate agent should know, purchasers of real estate have various options afforded to them, by law, as to how they wish to take ownership of the property. When two or more purchasers of real property decide to purchase real property in the State of Florida, they may choose between three options with which to take title as cotenants or, in other words, concurrent ownership.

The first among such cotenant relationships is called tenants in common. Tenants in common each enjoy a separate, and often times different, fractional share of a particular parcel of real property.[1] Upon the death of one cotenant, his or her fractional share is distributed to his or her heirs via a testamentary devise, such as a will, or by inheritance in accordance with Florida Probate Code when no will is present. [2]

Further, another such relationship is Joint Tenants with Rights of Survivorship (“JTWRS”). JTWRS enjoy a completely undivided (non-fractional) share of a particular piece of real property.[3] JTWRS differ from tenants in common in that, upon the death of one of the cotenants, the decedent’s interest transfers not to their heirs, but to the other tenant automatically by operation of law,[4] thus avoiding the need for probate to transfer title.

Lastly, solely reserved to married couples in the State is the tenancy by the entirety relationship. Similarly to JTWRS, upon death of one spouse, the entire interest immediately transfers to the remaining spouse by operation of law, thus avoiding probate.[5] The added benefit of an entireties relationship is that the property held by both spouses is generally, subject to certain exceptions (such as IRS liens),[6] exempt from collection on accounts in which only one, singular spouse owes a debt. [7]

However, what happens when cotenants discover they can no longer stand each other, or they no longer wish to be in business together, or want nothing to do with the other in regards to the property, or between parties who cannot agree as to terms of sale? The answer? Partition. A partition is a dissolution of the cotenant interest between two or more separate tenants.[8]  There are essentially two ways to partition property in the State, by contract or agreement of the parties, or by judicial intervention. This post will focus exclusively on the latter.

Judicial partition requests a particular Circuit Court of the State to enter an order either, (1) geographically splitting the property into share proportional to one’s fractional share of ownership (Partition in Kind), or; (2) forcing the sale of a particular parcel of real property and then to distribute the proceeds of that sale equally between the cotenants in accordance with their fractional share of ownership. [9] An important consideration to take into account is that a particular plaintiff filing a partition action, cannot seek the partition of only a portion of the land, the whole and entire property must be subject to the proceedings.[10] For example, if cotenant A and cotenant B decide they want to keep the western half of their property and partition the eastern half, because they have a disagreement as to how best to use the eastern half, the suit for partition will not stand because the entire property was not included.

It is a common observation alone that a parcel of real property, vacant land aside, cannot be split down the middle without causing a divestment to the value of the property itself or violate zoning ordinances. More specifically, if a parcel of land contains a home, a judge would likely not order the partition in kind of such a parcel as a home cannot be feasibly split into halves or thirds, as the situation demands.[11] Therefore in such situations, a court would likely order the forced sale of the property.

This may seem like a fairly simply procedure and process—it is not. Various considerations must be taken into account before one actively attempts to initiate a partition action. For example, what if there is a mortgage on the property? What if you only want to partition a portion of the property? What if one cotenant has been paying maintenance expenses upon the property but the other has not? Generally, these considerations are case-specific and require experienced hands to fully complete the action. Therefore, it is always best to proceed with a licensed attorney in the event such a dispute arises.

Barry Miller Law is acutely familiar with partition actions. If you, or someone you know, is having a dispute with another cotenant, call Barry Miller Law at 407-423-1700, or email us at Christian@BarryMillerLaw.com to schedule consultation to evaluate your rights and options.

[1] 12 Fla. Jur. 2d,  Cotenancy and Partition § 2

[2] In Re Cleeves, 509 So. 2d 1256 (Fla. 2d DCA 1987).

[3] 12 Fla. Jur. 2d,  Cotenancy and Partition § 9

[4] D.A.D., Inc. v. Moring, 218 So. 2d 451 (Fla. 4th DCA 1969).

[5] Gerson v. Broward County Title Co., 116 So. 2d 455 (Fla. 2d DCA 1959).

[6] U.S. v. Ryals, 480 F.3d 1101 (11th Cir. 2007).

[7] S.E.C. v. Solow, 682 F. Supp. 2d 1312 (S.D. Fla. 2010).

[8] In re Estate of Hillyer, 664 So. 2d 361 (Fla. 4th DCA 1995).

[9] See generally, Carlsen v. Carlsen 346 So. 2d 132 (Fla. 2d DCA 1977) (examining partition in kind and partition by sale).

[10] Lovett v. Lovett, 112 So. 768 (Fla. 1927).

[11] Id.