Understanding Partition and Co-Ownership Disputes in Real Estate

Can One Co-Owner Force the Sale of Property in Florida?

Owning property with another person can become difficult when the owners no longer agree about what should happen to it. One owner may want to sell while the other wants to stay. Former romantic partners may remain on the same deed years after their relationship ends. Siblings may inherit property together but disagree about whether to keep it, rent it, or sell it.

When co-owners cannot agree, Florida law provides a legal process called a partition action that can end the shared ownership.

In many cases, one co-owner can ask a Florida court to divide or sell jointly owned property even when the other owner does not want to sell. Florida law permits joint tenants, tenants in common, and certain other co-owners to bring an action for partition.

Can a Co-Owner Force the Sale of Property in Florida?

Generally, a co-owner cannot be forced to remain in shared ownership indefinitely.

A Florida partition action allows a qualifying co-owner to ask the court to end the parties’ shared ownership of real property. If the property can reasonably be divided, the court may divide it. When the property cannot reasonably be divided, the court may order a sale and divide the proceeds among the owners.

That does not mean one owner can simply list and sell the entire property without the other owner’s participation. Instead, when the owners cannot reach a voluntary agreement, a partition action provides the court process for resolving the dispute.

For many co-owners, the real questions are therefore not simply whether the shared ownership can end, but how the property will be sold and how the proceeds will ultimately be divided.

What Is a Florida Partition Action?

A partition action is a lawsuit used to divide jointly owned property or, when physical division is impractical, to have the property sold.

Florida’s partition statutes are contained in Chapter 64 of the Florida Statutes. The court determines the parties’ rights and ownership interests and, when partition is appropriate, determines how the jointly owned property should be divided or sold.

Partition disputes commonly arise between:

• Former unmarried couples who purchased a home together;
• Family members who inherited property;
• Friends or business partners who jointly purchased real estate; and
• Investors who no longer agree about what should happen to a property.

A partition case can involve more than simply selling the property. The court may also have to determine how certain expenses paid by the co-owners should be accounted for when the proceeds are ultimately distributed.

Can a Co-Owner Get Credit for Paying More Than Their Share of Property Expenses?

Yes. This can be one of the most important financial issues in a Florida partition action.

Consider a common example.

Boyfriend and Girlfriend purchase a home together, and each owns a 50% interest in the property.

Several years later, they separate. Boyfriend remains living in the house while Girlfriend moves elsewhere. Even after moving out, Girlfriend continues making the mortgage payments, paying the property taxes, and paying for necessary repairs to the jointly owned home.

When the property is eventually sold, does Girlfriend simply receive 50% of the proceeds, despite having paid expenses that were also Boyfriend’s responsibility?

Not necessarily.

Florida courts recognize that a co-owner who pays more than his or her proportional share of certain expenses associated with jointly owned property may be entitled to a credit from the sale proceeds.

In McFall v. Trubey, 992 So. 2d 867, 869 (Fla. 2d DCA 2008), the Second District Court of Appeal explained that a cotenant who pays another cotenant’s proportional share of expenses such as mortgage payments, taxes, and necessary repairs is entitled to credit for those payments against the sale proceeds.

Similarly, Biondo v. Powers, 743 So. 2d 161, 164 (Fla. 4th DCA 1999), recognizes that a cotenant who pays obligations of the property may be entitled to a credit from the proceeds for the other cotenant’s proportional share. Florida appellate courts continue to apply this principle when determining credits in partition proceedings.

Returning to our example, if Girlfriend paid qualifying expenses that should have been shared equally, she may seek a credit for Boyfriend’s proportional share before the remaining sale proceeds are distributed.

That means a property can be owned 50/50 while the final amount received by each co-owner after a partition sale is not necessarily identical.

The precise amount of any credit depends on the ownership interests, the expenses actually paid, any agreements between the parties, and the particular facts of the case.

A co-owner who has been paying property expenses should therefore keep records such as mortgage statements, tax records, bank statements, receipts, invoices, insurance records, and other documents showing what was paid and who made the payment.

This example is for illustration only. It does not describe an actual client or predict the outcome of any particular case.

What Happens if One Owner Wants to Sell and the Other Refuses?

A voluntary sale ordinarily requires the cooperation of the owners whose interests must be conveyed.

One co-owner generally cannot simply sell the other owner’s interest in the property. But another owner’s refusal to participate in a voluntary sale does not necessarily mean the property must remain jointly owned forever.

The owner seeking to end the co-ownership can file a partition action. The court can then determine the parties’ ownership interests and decide how the property should be partitioned.

The other co-owner remains entitled to participate in the lawsuit, dispute the claimed ownership percentages, contest claimed expenses, raise applicable defenses, and propose an alternative resolution.

The fact that one owner does not want the property sold, however, does not by itself eliminate the other owner’s ability to seek partition under Florida law.

Does a Florida Partition Action Always Result in a Sale?

No.

There are two basic ways jointly owned real property can be partitioned: the property can be physically divided, or it can be sold and the proceeds divided.

Partition in Kind

A partition in kind physically divides the real estate among the co-owners.

This may be practical when, for example, two people jointly own a large tract of vacant land that can reasonably be separated into individual parcels.

Physical division becomes considerably less practical when the parties own a single-family home, condominium, townhouse, or other property that cannot realistically be separated into individual pieces.

Partition by Sale

When jointly owned property cannot be divided without prejudice to the owners, Florida law permits the property to be sold and the proceeds divided among the parties according to their interests.

For that reason, a sale is often the practical result in a partition action involving a residential home.

Can One Co-Owner Buy Out the Other Instead?

Yes.

A partition dispute does not necessarily require selling the property to an unrelated third party.

If one owner wants to keep the property, the co-owners can negotiate a buyout. For example, if two former partners each own 50% of a home, the partner who wishes to remain in the property may purchase the other owner’s interest.

A negotiated buyout may require the parties to address:

• The fair market value of the property;
• The outstanding mortgage balance;
• The parties’ respective ownership percentages;
• Credits relating to property expenses;
• Existing liens;
• Closing costs; and
• Whether the remaining owner can refinance any existing mortgage.

A voluntary buyout can occur before a partition lawsuit is filed or while a case is pending.

In many cases, reaching an agreement on a buyout can avoid the additional expense and uncertainty associated with completing the entire partition process through the court.

How Are the Proceeds From a Florida Partition Sale Divided?

The percentage of ownership shown by the parties’ title interests is an important starting point, but it is not necessarily the final calculation.

Suppose two people each own a 50% interest in a property. If there are no other accounting issues, the net proceeds would generally be divided according to those interests.

But, as the boyfriend-and-girlfriend example above illustrates, there may first be financial issues that must be resolved between the owners.

Florida courts have explained that, following a partition sale, the court may determine the credits due to the parties before deciding the final amount each co-owner receives. McFall specifically involved the allocation of partition-sale proceeds after one cotenant had paid property expenses on behalf of another.

A 50/50 ownership interest therefore does not automatically mean the parties will walk away from the sale with two identical checks.

The parties’ actual distribution may depend on their ownership interests, property obligations, payments, and other circumstances affecting the accounting.

What Happens to the Mortgage in a Partition Action?

A partition action does not simply erase an existing mortgage or other valid lien affecting the property.

When property is sold, mortgages, taxes, liens, costs associated with the sale, and other appropriate obligations may need to be addressed before the remaining proceeds can be distributed to the co-owners.

A deed establishes ownership of an interest in real estate. The promissory note and mortgage involve separate obligations associated with the financing of that property. 

A voluntary buyout should therefore address not only ownership of the property, but also what will happen to any existing financing.

Does Living in the Property Prevent the Other Owner From Filing for Partition?

No. One owner’s decision to continue living in the property does not, by itself, eliminate another co-owner’s ability to seek partition.

This situation commonly arises after the end of an unmarried relationship. One former partner remains in the home while the other moves out, but both names remain on the deed.

The fact that one person lives there does not make the other person’s ownership interest disappear.

The parties’ use of the property, payment history, and other circumstances may create additional issues in a partition accounting, and those issues should be evaluated based on the facts of the individual case.

Who Pays Attorney Fees in a Florida Partition Action?

Florida has a specific statute addressing attorney fees and costs in partition proceedings.

Section 64.081, Florida Statutes, provides that parties may be responsible for a share of costs, including attorney fees, based on services rendered that are of benefit to the partition. The court determines those amounts on equitable principles in proportion to the parties’ interests. If the property is sold, the court may direct appropriate costs and fees to be paid or retained from the sale proceeds attributable to the parties responsible for them.

This does not mean that every attorney fee incurred by one co-owner is automatically shifted to the other side.

The nature of the work performed and whether that work benefited the partition are important to the court’s determination.

What Should I Do if I Am Paying All of the Expenses on Jointly Owned Property?

Keep records.

If you are paying the mortgage, taxes, insurance, necessary repairs, or other expenses associated with jointly owned property, documentation can become extremely important if a dispute later results in a partition action.

Useful records may include:

• Mortgage statements;
• Property tax records;
• Insurance statements;
• HOA or condominium assessments;
• Bank statements;
• Canceled checks;
• Receipts;
• Contractor invoices; and
• Communications between the owners regarding responsibility for property expenses.

As the decisions in McFall and Biondo illustrate, payments made toward jointly owned property can affect the ultimate distribution of partition proceeds.

Waiting until a dispute has already developed to reconstruct years of payments can make proving those expenses more difficult.