If property is partitioned, attorneys’ fees and costs shall be awarded.
Fla. Stat. § 64.081 provides, in pertinent part, as follows:
Every party shall be bound by the judgment to pay a share of the costs, including attorneys’ fees to plaintiff’s or defendant’s attorneys or to each of them commensurate with their services rendered and of benefit to the partition, to be determined on equitable principles in proportion to the party’s interest . . . (emphasis added).
Within 30 days of a judgment of partition, the partition-seeking co-owner of the property shall file a motion with the Court requesting the attorneys’ fees and costs rendered of benefit to the partition. The attorneys’ fees and costs are typically paid from the property’s sales proceeds.
What if the Court does not order partition?
By deduction, in the absence of a partition no attorneys’ fees may be awarded. See, e.g., Harmon v. Harmon, 453. So. 2d 77 (Fla. 3d DCA 1984). Recovery of attorneys’ fees is prohibited in a suit for partition where partition was not granted.
In Cannon v. Morris, the Court held that “it is improper to award fees pursuant to [Fla. Stat. § 64.081] in the absence of partition.” Cannon, 407 So. 2d 372, 374 (Fla. 1st DCA 1981); see also, Wilisch v. Wilisch, 335 So. 2d 861 (Fla. 3d DCA 1976) (declaring that “[t]here was no partition; therefore, there is no statutory authority for an attorney’s fee even if the Court had proceeded under Fla. Stat. § 64.081.”).
Brian Spiro handles partition actions throughout Florida. Please contact the attorneys at Comiter, Singer, Baseman & Braun, LLP at (561) 626-2101 or toll free (800) 226-1484 for a free consultation about your rights as a co-owner of property.