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The Right of Partition

Learn more about the rights a co-owner of a piece of real estate property has in Florida.

By Kristen Jackson, Jackson Law P.A.

Q:

How can one brother simply decide he wants to sell and think he can force the rest of us to agree?

My father died three years ago leaving his Florida home to his five children. Since my father’s death, my siblings and I have shared equally substantial earnings from renting out the property. One of my brothers now wants to sell the property because home values have doubled over the past couple of years and because he, being unemployed, feels he needs quick money. My other three siblings and I do not wish to sell and are happy with the rental income we earn.

A:

It is called Partition Action. Unfortunately for the four of you, your brother can hire an attorney and file a lawsuit to force a partition of the family home now co-owned by all of you. When someone co-owns a piece of real property in Florida, he or she has an absolute right to seek legal action to force a partition. Under Florida statutes, an action for partition can result in two types of property division: 1) in-kind, or 2) by-sale.

Like pieces to a puzzle, inkind partitions physically divide the property. If it is impracticable to divide the property by carving out a usable portion for each owner, Florida partition sale laws allow the property to be sold at auction. The proceeds from the Florida real estate partition bysale will then be divided between the parties according to percentage of ownership. Partition bysale is the most common type of partition because it is extremely difficult to split up most properties such as a home or office building. Partitions in-kind are usually reserved for large tracts of vacant land, where the land can easily be divided into separate parcels.

Before you and your siblings start a property war with your brother, you might want to give his request some consideration. Florida is experiencing a Seller’s Market, so your brother is correct that the real estate market has increased substantially. It is probably the best real estate market Florida has ever experienced and the value of properties doesn’t seem to be declining in Florida any time soon. So, each of you has an equal opportunity to take advantage of increased wealth by selling. If you wait for a Buyer’s Market to return, you could lose as much as 35% of your current property value, or more, depending on the condition of the home.

Furthermore, the cost to hire lawyers to represent a defense for those not wishing to sell, the cost for the partition fee, court costs, auction and real estate fees would erode any benefit to the five of you. You may want to consider your brother’s suggestion to sell the property or, alternatively, you and your other three siblings might consider buying out your brother’s interest at a value the five of you can agree upon. Before you start a property war, seek consultation from a real estate lawyer.

Kristen Jackson is the founding partner of Jackson Law P.A. (407-363-9020). She is experienced in estate planning, real estate law, business and contract law. Her firm has earned an AV rating by Martindale-Hubbell signifying the highest level of professional excellence as obtained through opinions from members of the bar and judiciary. For more information, visit www.JacksonFloridaRealtor.com