lt's The Law: Partition can cure property dispute

Partition can cure property dispute

Question: I own a house with a former friend. We are supposed to be 50/50. He has not been paying his part of expenses and I want to sell the house and be done with it. He refuses to sell. Can I force him to sell?

Answer: There is a long-standing equitable remedy for your problem known as partition. It has been codified by the legislature at Florida Statutes Sections 64.011-64.091. Courts are very receptive to partition actions because they eliminate problems of joint ownership in a peaceful and flexible manner.

Partition is an action filed by one or more co-owners to divide property in accordance with the interests of the owners. Partition is most commonly sought as part of a divorce case, but is available to any co-owner.

In connection with partition, the parties generally seek to resolve all disputes concerning the property. The court is usually asked to order an accounting so that the financial contributions of the owners to the property can be “balanced” with the proceeds of sale. If the property is subject to division, like a large parcel of land, the court will divide the property and award portions of it to each owner.

A partition judgment appoints three commissioners to recommend a division of property among the parties. The commissioners submit a written report to the court. If the court finds that division cannot be made without undue prejudice to the owners, the court may order the property sold at public auction. If the court finds good reason, it can also order that the sale be made on reasonable credit for part, or all, of the sale price, not to exceed two-thirds of the sale price. The credit amount must be secured by a mortgage on the land and such other security as the court directs.

Costs of the partition action are shared by all of the owners, including the filing party’s attorney’s fees. If one of the owners objects to the partition case and files a defense, his or her fees may also be paid if the court finds it appropriate. Because partition is intended to settle disputes between owners, defending owners rarely get their fees paid as part of the action because defense does little to add in the process. If the property is sold by order of court, the court may also order the fees and costs be paid from the proceeds of sale.

If the parties agree, the court may order a private sale and appoint a receiver to manage the sale of property or other proceedings other than a public auction. But, when the parties will not cooperate, public auction sale is the statutory solution.

A co-owner can purchase the property at the public auction. If the co-owner purchases and there is a lien against the property, the purchaser may request that the amount of the lien against the other owners’ interests be deducted from their share of the sale proceeds. If a mortgage holder purchases, the mortgage holder need only pay the amount bid in excess of the mortgage holder’s debt.

Because these proceedings can involve an auction sale, they are likely to bring top dollar or even market value for property. Co-owners are usually better off cooperating. If partition is pursued, the attorney’s fees and costs are shared by all, and that still reduces funds available from sale. These cases are usually better settled then litigated, but when the parties cannot agree, partition is a viable option to end ownership disputes.

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722. Other articles of interest can be viewed at our website, www.wgmorrislaw.com.

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