Overview
This FAQ-style guide explains how someone with an ownership interest under Florida law can force the sale of real property when a co-owner (for example, a deceased parent) is involved. It walks through when a partition action is appropriate, key steps, what the court does, and practical tips. This is educational information only and not legal advice.
Disclaimer
This article is for general information only and is not legal advice. Laws change and every situation is different. For advice about your specific circumstance, consult a licensed Florida attorney.
Detailed Answer — When and how a partition action works in Florida
Partition is a court procedure that allows co-owners of real property to divide the property or force a sale and divide the proceeds. In Florida, partition actions are governed by the statutes and handled in the circuit court where the property is located. See Florida’s partition statutes: Florida Statutes, Chapter 64 (Partition).
1. Do you have the right to file?
- You generally can file a partition action only if you are a current legal co-owner (for example, a tenant in common). A partition action requires ownership—if the title passed entirely to someone else after your father’s death, you may not be a co-owner.
- If the property was titled as joint tenants with right of survivorship, the surviving joint owner usually took full title on your father’s death and a partition action is not available against that owner.
- If the property is still in your father’s name and his estate has not been probated, you may need to open probate or have an administrator/executor deal with the property before any partition among heirs can proceed.
- Florida homestead protections can prevent forced sale or significantly limit claims by creditors or others. If the property was your father’s homestead at death and certain family members survive, special rules apply. Consult a probate attorney about homestead issues.
2. Typical step-by-step process
- Confirm ownership: do a title search via the county clerk/recorder or a title company. Identify all owners, lienholders (mortgage, tax liens), and anyone with an interest listed in public records.
- Check probate status: if your father died recently or a will exists, determine whether property title has passed through probate. If the estate has not been administered, an executor or personal representative may need to be appointed to deal with title or sale.
- Try to resolve the matter voluntarily: offer to buy out other owners, agree to a sale and split proceeds, or pursue mediation. Courts expect parties to attempt settlement when appropriate.
- Prepare and file a complaint for partition in the circuit court where the property is located. The complaint names all co-owners and known lienholders as defendants and asks the court to partition the property or order a sale. Under Florida law, the complaint must include a description of the property and the nature of each party’s interest. See Chapter 64.
- The court will serve all named parties and give them an opportunity to respond. All interested parties must be joined so the court can fully resolve ownership and liens.
- If the court determines that the property cannot be fairly partitioned in kind (divided physically without unfairness), it will order a sale. The court often appoints a commissioner or special master to oversee appraisal and sale logistics. Sales are usually conducted publicly according to court orders or by the appointed official.
- Sale proceeds pay mortgages, tax liens, costs of sale, and court costs. Remaining funds are distributed to owners according to their ownership shares after accounting for debts and expenses.
3. Practical considerations and common hurdles
- All owners and lienholders should be named. If a necessary party is not joined, the sale or distribution can be challenged later.
- Probate status can complicate a partition. If title resides in the estate, only the personal representative or those legally vested through probate can be bound by a partition judgment.
- Homestead protection may prevent sale or limit who can be compelled to sell. Florida’s constitutional homestead rules can give surviving spouses and minor children special rights.
- Partition litigation can be contentious and costlier than a voluntary agreement. Courts rarely award attorney’s fees in partition actions unless a contract or statute allows it.
What the court does after you file
After filing, the court: (1) determines the owners’ interests; (2) decides whether partition in kind is feasible; (3) if in kind is not feasible, orders sale; (4) appoints a commissioner or master to handle appraisal and sale; and (5) supervises distribution of proceeds. The court’s order becomes a final judgment dividing the proceeds among owners and settling liens.
Timeline and costs
Timelines vary. A simple uncontested case can resolve in a few months; contested matters, title disputes, probate issues, or homestead challenges can take a year or longer. Expect court filing fees, appraisal costs, commissioner fees, and attorney fees if you hire counsel.
Helpful Hints
- Start with a title search and copies of deeds, mortgage statements, tax bills, and any will or probate filings.
- Check whether the estate is open in probate. If it is, talk to the personal representative or the probate court clerk before filing a separate partition case.
- Attempt a written settlement or mediation before filing. A voluntary sale or buyout often saves time and money.
- Get a current appraisal so you know fair market value before asking the court to sell.
- Notify and include all lienholders (mortgage companies, IRS/state tax liens) in the complaint so the court can clear title on sale.
- If homestead might apply (your parent lived in the home as their permanent residence), consult a probate lawyer first—homestead issues can prevent or delay forced sale.
- Consider hiring an attorney experienced in Florida partition and probate law; they can prepare pleadings, join necessary parties, and represent you at sale or hearing.
- Keep records of communications with co-owners and any offers; courts view good-faith settlement attempts favorably.
Where to find the law and further resources
- Florida Partition statutes: https://www.flsenate.gov/Laws/Statutes/Chapter/64
- Florida State Courts (general court information and locating your circuit court): https://www.flcourts.org/
Next steps
If you believe you have a right to partition under Florida law, begin by confirming ownership and probate status. If multiple owners cannot agree, consult a Florida attorney who handles partition and probate cases to discuss filing a partition action and to protect your rights through the court process.