Partitioning property in Florida, typically involving real estate, is a legal process that allows co-owners to divide the property when they cannot agree on its use or sale. The process generally follows these steps:

  1. Filing a Partition Action: The process begins with one or more co-owners filing a lawsuit in the county where the property is located. This legal action is known as a "partition action." The complaint must detail the property in question and the ownership interests of each party.
  2. Service of Process: After filing the lawsuit, the plaintiff must serve all co-owners and any other interested parties with a copy of the complaint and a summons to appear in court.
  3. Response by Defendants: The co-owners served with the lawsuit, now defendants, have a specified period to respond. They can agree with the partition, contest it, or assert any legal defenses or counterclaims.
  4. Appointment of a Special Magistrate: The court may appoint a Special Magistrate (a neutral third party) to oversee the partition process. This individual is usually a lawyer or a professional with expertise in real estate.
  5. Determination of Property Division: The court or the Special Magistrate will determine whether the property can be physically divided (partition in kind) or if it must be sold and the proceeds divided among the owners (partition by sale).
  6. Partition in Kind: This is feasible when the property can be equitably divided into distinct portions without harming the co-owners' interests. Each co-owner ends up with a physically separate piece of the property.
  7. Partition by Sale: If the property cannot be fairly divided (e.g., a single-family home), the court will order a sale of the property. This can be through a public auction or private sale, depending on what the court deems most equitable.
  8. Distribution of Proceeds or Property: After the sale or division, the proceeds or property are distributed among the co-owners according to their respective ownership shares. Expenses related to the partition, including court costs, attorneys' fees, and the Special Magistrate's fees, are usually deducted from the sale proceeds before distribution.
  9. Final Judgment: The court will issue a final judgment that officially ends the partition action, confirming the division of the property or the distribution of sale proceeds.

In a partition action in Florida, the defendants (typically the co-owners who did not initiate the lawsuit) have several potential legal defenses or counterclaims they can assert. The applicability and success of these defenses or counterclaims depend on the specific circumstances of the case. Here are some common ones:

  1. Title Issues: A defendant might challenge the plaintiff's ownership or the ownership percentages claimed in the partition action. This can involve disputes over the deed, inheritance issues, or discrepancies in the property's title history.
  2. Improvements and Contributions: If one co-owner has made significant improvements to the property or has contributed more than others towards its maintenance and taxes, they might seek an adjustment in the proceeds from a sale to account for their additional contributions.
  3. Right of First Refusal: In some cases, the co-owners might have an agreement (either formal or informal) that gives one or more of them the first right to purchase the interest of another co-owner before it is offered to outsiders. Asserting this right can affect the partition process.
  4. Statute of Limitations: Although rare in partition actions, a defendant might argue that the action is barred by the applicable statute of limitations if there is a specific legal basis for such a defense.
  5. Adverse Possession: In rare instances, a co-owner might claim that they have acquired full ownership of the property through adverse possession by using the property exclusively and openly, without permission, for a period defined by state law.
  6. Equitable Defenses: Defendants may argue that the partition action would result in unjust enrichment or would be inequitable under the circumstances. For example, if the partition action was initiated after one co-owner invested significantly in the property's improvement, expecting to benefit from that investment.
  7. Waiver or Estoppel: A defendant might claim that the plaintiff waived their right to seek partition or is estopped from doing so because of some action, representation, or omission on their part.
  8. Laches: This defense argues that the plaintiff unreasonably delayed in bringing the partition action to the detriment of the defendant, such as by waiting until property values increased significantly.
  9. Lease Agreements: If there are existing lease agreements with tenants, a defendant might argue that these agreements must be honored, potentially complicating the partition process.
  10. Life Estates or Future Interests: If someone holds a life estate or there are future interests in the property, these interests must be considered in the partition action, which can serve as a defense against a straightforward sale or division.

It's important for individuals involved in a partition action to consult with a attorney experienced in Florida partition actions to navigate the complexities of the process and to advocate for their interests. The actual process can vary based on the specific facts of each case and the discretion of the court.

You can reach Attorney J.P. Gonzalez-Sirgo by dialing his direct number at (786) 272-5841, calling the main office at (305) 461-1095, or Toll Free at 1 (866) 71-CLAIM or email Attorney Gonzalez-Sirgo directly at [email protected] or by text at (305) 929-8935.

J.P. Gonzalez-Sirgo
J.P. Gonzalez-Sirgo, P.A.
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