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What you need to know about real estate partition

On Behalf of | Apr 4, 2024 | REAL ESTATE LAW - Real Estate Law |

Real estate partition involves the fair division of jointly owned property among co-owners or co-proprietors. Unlike other legal actions such as quiet title lawsuits, its focus lies on equitable distribution rather than establishing ownership claims.

This approach can help to ensure peace among co-owners, streamlines title transfers and eliminates the challenges of joint ownership, all while adhering to principles of fairness and equity.

Who can initiate real estate partition?

Under Florida law, joint tenants, tenants in common or coparceners can file for partition against their co-owners or interested parties. One of the major requirements is being able to prove ownership and possession or having an immediate right to possession. Individuals beyond co-titleholders such as mortgagees or judgment creditors may also need to be involved in the process to address all interests in the property fully.

Here are a couple of real world examples:

For example, consider an unmarried couple that owns a home and decides to separate. One person remains in the home and the other moves out. The person who moves out generally wants to sell so their name is removed from the mortgage and they recover any equity in the home. These situations can become complex, especially if one person threatens to stop paying the mortgage in order to ruin the other’s credit. You will want an attorney’s help in these cases.

Matters can also get complicated when siblings inherent property from a parent. Sometimes one sibling wants to keep the property and the other wants to sell it. If they can’t agree, the sibling that wants to sell needs a lawyer to initiate the partition lawsuit.

What is meant by mandatory nature of relief?

The mandatory nature of relief in real estate partition refers to the obligation of courts to grant partition when a proper case has been made. Despite factors such as family relationships or financial standing, courts are compelled to provide this remedy, helping to ensure equitable outcomes for all parties involved. In essence, it means that partition is not discretionary but a fundamental right granted to co-owners seeking fair distribution of jointly owned property.

Can the property be sold in lieu of partition?

In cases where the property is indivisible or impractical to physically partition, it can be sold instead. This alternative ensures that the value of the property can be realized and distributed among the co-owners. There are several procedures available for selling the property in lieu of partition, including judicial sale by public auction, sale by the clerk or magistrate or sale based on the parties’ agreement. Each method has its own advantages and considerations, allowing for a fair and efficient sale process while ensuring equitable distribution of proceeds among the co-owners.

Real estate partition proceedings can be complex

It is important to get legal counsel to help ensure that your rights are protected, all relevant factors are considered and the process is carried out effectively and fairly.