Partition Action Attorney in Miami, Florida | Law Offices of Albert Goodwin

When two or more people co-own real property and cannot agree on what to do with it, a partition action may be the only path forward. Whether the dispute arises among siblings who inherited a family home, former business partners who invested in real estate together, or ex-spouses who still hold title to a property after divorce, Florida law provides a legal mechanism to resolve the impasse. At the Law Offices of Albert Goodwin, PA, we represent co-owners throughout Miami, Coral Gables, and the state of Florida in all aspects of partition litigation, from pre-suit negotiations to trial.

What Is a Partition Action?

A partition action is a lawsuit filed by one or more co-owners of real property to divide or sell the property when the co-owners cannot reach a voluntary agreement. Under Florida law, every co-owner of property has an absolute right to partition. This means that no co-owner can be forced to remain in a co-ownership arrangement indefinitely against their will. Florida courts have long recognized that the right to partition is a fundamental property right that cannot be waived except by clear and express agreement.

Partition actions in Florida are governed by Chapter 64 of the Florida Statutes. Under F.S. Section 64.011, any person who has an interest in real property, whether as a joint tenant, tenant in common, or coparcener, may bring an action for partition of that property. The court has broad authority to order the physical division of the property among the co-owners (known as a partition in kind) or, if division is not practical, to order the property sold and the proceeds distributed among the co-owners (known as a partition by sale).

When Do Partition Actions Arise?

Partition disputes can arise in a wide variety of circumstances. The most common scenarios we see in our Miami practice include:

Inherited Property Disputes

One of the most frequent triggers for partition actions is inherited property. When a parent or other family member passes away and leaves real estate to multiple heirs, the co-owners often have competing visions for the property. One sibling may want to sell the property and split the proceeds, while another may want to continue living in the home or keep it in the family for sentimental reasons. If the decedent's will or the terms of an estate plan do not resolve the issue, a partition action may be necessary.

These disputes are especially common when the decedent died intestate (without a will) and the property passes to multiple heirs under Florida's intestacy laws. Inherited property that has been passed down through generations without clear title documentation is sometimes referred to as heirs property, and it receives special protections under Florida law, as discussed below.

Co-Ownership Disputes Among Unrelated Parties

Partition actions are not limited to family disputes. They also arise when friends, business partners, or romantic partners purchase real estate together and later have a falling out. When the co-owners cannot agree on whether to sell, rent, renovate, or otherwise manage the property, a partition action provides a legal remedy. These situations are common in Miami's real estate market, where co-investment in residential and commercial properties is frequent.

Post-Divorce Property Disputes

After a divorce, former spouses sometimes continue to hold title to real property jointly, either because the divorce decree did not address the property, because the parties agreed to delay disposition of the asset, or because one party failed to comply with a court order to transfer title. When these arrangements break down, a partition action may be the most efficient way to resolve the situation. This is particularly true when the property was not addressed during the divorce proceedings or when the former spouses acquired additional property together before the marriage was dissolved.

Florida Partition Law: Chapter 64 of the Florida Statutes

Florida's partition statute, Chapter 64 of the Florida Statutes, sets forth the procedural and substantive framework for partition actions. Key provisions include:

F.S. Section 64.011 establishes the right of any co-owner to bring a partition action and identifies the types of estates subject to partition, including joint tenancies and tenancies in common.
F.S. Section 64.031 addresses the complaint requirements, including the identification of all parties with an interest in the property and a description of the property to be partitioned.
F.S. Section 64.041 requires the court to determine the interests of all parties and to identify any liens, encumbrances, or other claims against the property before ordering partition.
F.S. Section 64.051 provides that the court shall order partition in kind if it can be done without prejudice to the co-owners, or partition by sale if the property cannot be divided equitably.
F.S. Section 64.061 addresses the appointment of commissioners to carry out the physical division of the property in partition in kind cases.
F.S. Section 64.071 governs the procedure for judicial sales when partition by sale is ordered, including the requirement that the sale be conducted in a commercially reasonable manner.

Florida courts also have equitable authority to make adjustments and award credits to co-owners who have contributed disproportionately to the costs of maintaining the property, as discussed in further detail below.

Partition in Kind vs. Partition by Sale

There are two primary forms of partition under Florida law: partition in kind and partition by sale. Understanding the difference between these two remedies is critical for any co-owner involved in a partition dispute.

Partition in Kind

A partition in kind involves the physical division of the property into separate parcels, with each co-owner receiving their proportionate share in the form of a distinct parcel of land. Historically, Florida law has expressed a preference for partition in kind over partition by sale, because a physical division allows each co-owner to retain their interest in real property rather than being forced to accept cash. Under F.S. Section 64.051, the court must consider partition in kind before resorting to a forced sale.

In practice, however, partition in kind is only feasible for certain types of properties. Large tracts of undeveloped land, for example, may lend themselves to physical division. But a single-family home, a condominium unit, or a small commercial building generally cannot be meaningfully divided among co-owners. In the densely developed Miami real estate market, partition in kind is relatively uncommon because most co-owned properties consist of single residential or commercial units that cannot be physically subdivided.

Partition by Sale

When partition in kind is impractical or would result in prejudice to the co-owners, the court will order a partition by sale. In a partition by sale, the property is sold and the net proceeds are distributed among the co-owners according to their respective ownership interests, after deducting any costs of sale and adjustments for contributions and credits.

Historically, partition by sale in Florida was conducted through a judicial sale or public auction, which often resulted in the property being sold for significantly less than its fair market value. This was especially harmful to co-owners of heirs property, who frequently lost generational wealth when family properties were sold at auction for a fraction of their true value. In response to this concern, Florida adopted the Uniform Partition of Heirs Property Act.

The Uniform Partition of Heirs Property Act (UPHPA) in Florida

In 2020, Florida adopted the Uniform Partition of Heirs Property Act (UPHPA), codified at F.S. Section 64.091. The UPHPA was designed to address the widespread loss of family wealth that occurs when heirs property is forced to sale through partition actions. Heirs property is real property that is held by multiple co-owners, at least one of whom acquired their interest from a relative (whether by inheritance, gift, or intestate succession), and where there is no binding agreement among all co-owners governing the partition of the property.

The UPHPA introduces several important protections for owners of heirs property in Florida:

Court-Appointed Appraiser

When a partition action involves heirs property, the court must order an appraisal of the property by a disinterested, licensed appraiser. This ensures that the property is valued at its true fair market value, rather than being sold at a depressed price through a forced auction. The appraiser's determination of value serves as the baseline for any buyout or sale, protecting co-owners from being shortchanged.

Right of First Refusal and Buyout

Under the UPHPA, before the court can order a sale of heirs property, the non-petitioning co-owners must be given the right of first refusal to purchase the interests of the co-owners who wish to sell. This buyout right allows family members who want to keep the property to purchase the departing co-owner's share at a price based on the court-ordered appraisal. The co-owners who wish to buy must pay the appraised value of the petitioning co-owner's interest within the timeframe established by the court.

Open-Market Sale Requirement

If no co-owner exercises the right of first refusal and the court determines that partition in kind is not practical, the UPHPA requires that any sale be conducted on the open market rather than through a judicial auction. This is a significant change from prior law, under which partition sales were often conducted at courthouse auctions where investors could acquire properties at steep discounts. The open-market sale requirement ensures that the property is exposed to the broadest pool of potential buyers and is sold at or near its actual market value.

Consideration of Non-Economic Factors

The UPHPA also requires the court to consider the totality of the circumstances when deciding whether to order partition in kind or partition by sale. This includes non-economic factors such as the sentimental value of the property, the length of time the property has been in the family, and whether any co-owner has a personal attachment to the property based on long-term residence or family history. These considerations were often overlooked under prior partition law.

The Partition Action Process Step by Step

A typical partition action in Florida proceeds through the following stages:

Pre-suit negotiations: Before filing a lawsuit, we make every effort to resolve the dispute through negotiation. In many cases, a well-crafted demand letter or settlement proposal can lead to a voluntary buyout or agreed-upon sale without the need for litigation. Pre-suit resolution saves all parties significant time and money.
Filing the complaint: If negotiations fail, we file a partition complaint in the circuit court of the county where the property is located. The complaint identifies all co-owners and interested parties, describes the property, sets forth each party's ownership interest, and requests that the court order partition. Under F.S. Section 64.031, all persons with a known interest in the property must be named as parties.
Service of process and responsive pleadings: All named parties must be properly served with the complaint and given an opportunity to respond. Co-owners may file answers, counterclaims, or cross-claims asserting their own rights or claims for credits and contributions.
Determination of interests: The court determines each party's ownership interest in the property, resolves any disputes over title, and identifies all liens, encumbrances, and other claims. If the property qualifies as heirs property under F.S. Section 64.091, the court will apply the UPHPA procedures.
Appraisal: In heirs property cases, the court appoints a licensed appraiser to determine the property's fair market value. Even in non-UPHPA cases, the parties may agree to obtain an appraisal to facilitate settlement discussions or to assist the court in making equitable adjustments.
Buyout opportunity: In UPHPA cases, the non-petitioning co-owners are given the opportunity to buy out the petitioning co-owner's interest at the appraised value. If the buyout is completed, the partition action concludes without a sale of the property.
Order of partition: If no buyout occurs, the court determines whether partition in kind or partition by sale is appropriate. The court considers the nature of the property, the interests of the parties, and any applicable UPHPA factors.
Sale or division: If partition by sale is ordered, the property is listed for sale on the open market (in UPHPA cases) or sold through a court-supervised process. If partition in kind is ordered, commissioners are appointed to oversee the physical division of the property.
Accounting and distribution: After the sale or division, the court conducts a final accounting, awards credits for contributions, deducts costs and liens, and distributes the net proceeds or parcels to the co-owners.

Buyout Negotiations in Partition Cases

In our experience, many partition actions are resolved through a negotiated buyout rather than a court-ordered sale. A buyout occurs when one or more co-owners purchase the interest of the other co-owners, allowing the purchasing co-owner to retain the property. Buyout negotiations require careful analysis of the property's value, each party's ownership interest, and any credits or offsets that may be owed.

We work closely with our clients to evaluate whether a buyout is financially feasible and strategically advisable. In some cases, the co-owner who wants to keep the property can obtain financing to purchase the other co-owner's interest. In other cases, creative solutions such as installment payments, exchanges of other assets, or refinancing arrangements may make a buyout possible. The goal is always to achieve the best possible outcome for our client while minimizing litigation costs and preserving family relationships where possible.

Accounting for Contributions: Mortgage Payments, Taxes, Improvements, and Maintenance

One of the most contentious aspects of any partition action is the accounting for contributions. In many co-ownership arrangements, one co-owner contributes significantly more than the others to the costs of maintaining the property. Florida courts have equitable authority to award credits and offsets to co-owners who have made disproportionate contributions, ensuring that each party receives their fair share upon partition.

Common types of contributions that may give rise to credits in a Florida partition action include:

Mortgage payments: A co-owner who has made mortgage payments on the property is generally entitled to a credit for the other co-owners' proportionate share of those payments. This includes both principal and interest payments. However, if the paying co-owner had exclusive possession of the property, the credit may be offset by the fair rental value that the occupying co-owner received as a benefit.
Property taxes: A co-owner who pays property taxes on the entire property is entitled to seek reimbursement from the other co-owners for their proportionate share. Failure to pay property taxes can result in tax liens or even tax deed sales, so the co-owner who keeps the taxes current provides a benefit to all co-owners.
Insurance: Contributions toward property insurance premiums may also be credited, as insurance protects the interests of all co-owners.
Improvements: A co-owner who makes permanent improvements to the property (such as a new roof, renovated kitchen, or addition) may be entitled to a credit for the increased value that the improvements add to the property. However, the credit is typically limited to the actual increase in the property's value, not the cost of the improvement itself.
Maintenance and repairs: Necessary maintenance and repair costs incurred by one co-owner may be credited in the partition accounting. Routine maintenance that preserves the property's value is more likely to be credited than cosmetic or optional upgrades.
Fair rental value offset: A co-owner who has had exclusive use and possession of the property may owe the other co-owners their proportionate share of the property's fair rental value. This offset can reduce or eliminate credits that the occupying co-owner might otherwise claim for mortgage payments, taxes, or maintenance.

The accounting process can be complex and requires detailed documentation. We advise our clients to maintain thorough records of all payments, improvements, and expenditures related to co-owned property, as these records will be critical in establishing credits and offsets during the partition proceeding.

How Long Do Partition Actions Take in Florida?

The timeline for a partition action in Florida depends on several factors, including the complexity of the ownership interests, the number of parties involved, whether the property qualifies as heirs property under the UPHPA, and whether the parties are able to reach a settlement. In straightforward cases where the parties agree on the basic terms of a sale or buyout, a partition action may be resolved in as little as three to six months. More complex cases involving disputed title, contested accounting claims, or contested UPHPA proceedings can take twelve months or longer.

Pre-suit negotiations can significantly shorten the timeline by narrowing the issues in dispute or eliminating the need for litigation altogether. Even after a lawsuit is filed, settlement discussions often continue, and many partition actions are resolved through mediation before trial. Florida courts generally encourage mediation in partition cases, and some circuits require it before the case can be set for trial.

Our Approach to Partition Actions

At the Law Offices of Albert Goodwin, PA, we take a strategic and client-focused approach to partition actions. We understand that these cases involve not only legal questions but also deeply personal issues related to family, home, and financial security. Our approach includes:

Thorough case evaluation: We begin every partition matter with a comprehensive review of the property's title history, ownership interests, liens, encumbrances, and any applicable UPHPA protections. We analyze the strengths and weaknesses of our client's position and develop a strategy tailored to their goals.
Aggressive negotiation: We pursue pre-suit and ongoing negotiations designed to achieve our client's objectives without unnecessary litigation costs. Whether our client wants to keep the property, sell it, or buy out other co-owners, we negotiate from a position of strength and preparation.
Experienced litigation: When negotiation is not sufficient, we have the courtroom experience to pursue our client's rights through the partition process, including contested hearings on accounting claims, UPHPA proceedings, and judicial sales. We have handled partition cases involving estate disputes, post-divorce conflicts, and complex multi-party co-ownership arrangements.
Protection of heirs property rights: For clients whose property qualifies as heirs property under F.S. Section 64.091, we ensure that all UPHPA protections are enforced, including the right of first refusal, the requirement of a court-ordered appraisal, and the open-market sale requirement.
Coordination with related proceedings: Partition disputes often overlap with probate proceedings, estate litigation, or guardianship matters. We coordinate our partition strategy with any related proceedings to ensure a consistent and efficient resolution of all issues.

Contact a Miami Partition Action Attorney

If you are involved in a dispute over co-owned property in Florida, the Law Offices of Albert Goodwin, PA can help. Whether you need to file a partition action, defend against one, negotiate a buyout, or protect your rights under the Uniform Partition of Heirs Property Act, we have the experience and dedication to guide you through the process and protect your interests.

Call us at 786-522-1411 or email us at [email protected] to schedule a consultation with an experienced partition action attorney. Our office is located at 121 Alhambra Plz # 1000, Coral Gables, FL 33134, and we serve clients throughout Miami-Dade County and the state of Florida.