A partition action is commenced to force the sale of jointly-owned property, often real estate. Under Florida law, a co-owner of real property may file a lawsuit against the other co-owners of the property when they cannot agree on how to continue their joint ownership of the property. See, Ch. 64, Florida Statutes. Partition may be had of any property held by joint tenants, tenants in common, or coparceners, but not between co-owners of property held as a tenancy by the entirety.
When a court grants partition, it may order a sale if it finds that the property sought to be partitioned is indivisible and cannot be partitioned in-kind (for example, the west lot to brother, the east lot to sister).
Can the right to partition be waived?
Yes. Although partition is an absolute right to a co-owner of property, such right may be waived by either an express or implied agreement. Any agreement to not partition must be for a reasonable and definite period of time and may not be otherwise unduly restrictive. See, e.g., Haddad v Hester, 964 So. 2d 707 (Fla. 3d DCA 2007). In the Haddad case, the Court found that an agreement not to partition for the life of the tenants was not unreasonable.
Can property claimed as homestead be partitioned?
The constitutional homestead protections do not preclude the forced sale of property. Florida courts uniformly hold that homestead property is subject to partition.
The Supreme Court in Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978), held that the “constitutional provisions [of homestead] allow the partition and forced sale of homestead property upon suit by one of the owners of that property . . . .”
Homestead protections found in the Florida constitution were enacted to protect the family home from forced sale for the debts of the owner. While homestead interests in property should be protected from a forced sale whenever possible, homestead cannot protect an owner from a forced sale at the expense of others who also own an interest in that property. See, Wescott v. Wescott, 487 So. 2d 1099 (Fla. 5th DCA 1986).
To illustrate by way of example, assume that a parent (predeceased by their spouse) passes away owning a home in Florida. By will, deed, or otherwise, that home passes to the parent’s son and daughter, equally. The daughter lives out of state. Next assume, that the son moves into the home shortly after their parent’s death and claims homestead on the property. Under Florida law, the daughter is not precluded from seeking a partition on the home because her sibling claimed the home as his homestead. Stated differently, daughter can file a partition action against son and force the sale of the home notwithstanding that son has claimed the home as his homestead. They are co-owners and absent an agreement to the contrary, the property can be partitioned.
How does the Court order the sale of property after partition?
When the Court finds that a property is not susceptible to an equitable physical division, there are three options the court has for ordering a partition sale:
- A judicial sale by public auction. See, Fla. Stat. § 64.071.
- A private sale conducted by the clerk or magistrate. See, Fla. Stat. § 64.061(4).
- A private sale based on a stipulation or agreement of the parties. See, Marks v. Stein, 160 So. 3d 502 (Fla. 2d DCA 2015).
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.