There are many benefits of becoming the co-owner of a property – for example, mortgage repayments and maintenance costs are significantly less. Although buying a property with someone and becoming a co-owner can result in a more affordable investment, it can also go wrong. In Florida, co-owners have an absolute right to bring and action for partition, which seeks to sell or divide the property, for which there are several reasons. Some parties co-own a property due to inheritance and want to separate this agreement, other times romantic relationships may end, competing interests may introduce themselves, or family relationships may turn sour. Regardless of the reason for the partition, it is important to follow real estate law with the guidance of a qualified real estate attorney to ensure that the process is legal and potential disputes are reduced.
What is Partition of Joint Property?
In Florida, real estate law describes the partition of a property as the act of bringing a proceeding to court in order to enforce the physical division or sale of the property, as well as the proceeds, among co-owners. Normally, this is caused by co-owners disagreeing on what to do with their portion of the property. Partition action describes the process of one owner suing for full ownership.
Not all partitions are court-ordered. In some instances, there may be a voluntary partition whereby co-owners agree that they no longer want to own the property together and an agreement is reached on the division or sale of the property. It is important to note that this is still a legal process, and needs to be completed thoroughly.
The right to partition is an “absolute right” which is acknowledged by the American courts. The legal process of partition will divide the property according to the percentage of ownership. There are rare instances when the partition is not granted such as the provision of a will, or another legally written exception.
Preparing for Partition
When acting on the right to partition, it is important to prepare thoroughly. A real estate attorney that specializes in partition will be able to guide you in this process. A critical step is to gather all of your records relating to the property. These records include the likes of maintenance records, title, deed restrictions, tax records and probate paperwork.
The next step is to decide which type of partition you would like to file. There are two different types.
- Partition in Kind – this describes the actual division of the property. It divides the individual interests of the involved owners and each owner is able to control their own portion of the property. This type of partition is typically the favored option.
- Partition by Sale – this is accomplished by equally splitting the proceeds after selling the property in its entirety.
If a joint owner is sued and incurs costs in the process, then it is possible to file a countersuit which should assist in recovering some of the expenses directly related to the property, for example taxes and interest. It is important to note that Florida is a lien theory state. This means that any lender or mortgagee has a lien on the property for the value of the outstanding loan. If there is a partition of sale, the owners will only be able to take home proceeds after the lien has been paid in full. If you find yourself in this position, make sure that you hire the services of a lawyer experienced in foreclosure defense and mortgage workouts.
Investing in real estate is a big decision due to the financial commitment. Enduring the legal process of partition can be complicated and disheartening. Handin Law offers real estate legal services that you can count on to make the process smoother and less complicated.