People, even husbands, wives, and relatives, often own property with others; whether it is a home or a vehicle. And it is typical that one owner pays more of the expenses than the other or other disagreements arise between the owners. When two property owners cannot agree, this can create a stalemate where they no longer want to continue in co-ownership. If you find yourself in this situation, Florida law provides you with a way out: force the sale of the property and receive your portion of the sale proceeds. This is a legal remedy known as partition.
To commence a partition action, you must file a complaint, requesting a partition of the property. The lawsuit must be filed in the county where the property is located. Each person with an interest in the property must be included as a party to the lawsuit and the complaint must identify certain information about the parties and the property involved.
Each owner has an opportunity to make claims for expenses that he or she has incurred (contribution claims). Each co-owner is responsible for their portion of the property related expenses. For example, if two owners each own 50% of the property, then each party is responsible one-half of the expenses. Therefore, if one of the co-owners pays more than 50% of the expenses, he or she will receive a credit against the other co-owners portion of the sale proceeds. The reimbursable expenses include mortgage payments, insurance, taxes and necessary repairs.
Typically, the court will determine the rights of the parties and decide how it is best to divide up the property. If the property cannot be physically divided amongst the parties, the court will require that the property be sold and the proceeds divided between the parties. Keep in mind though that mortgages/liens and attorney’s fees and costs will be paid from the sale proceeds prior to distribution to the owners/sellers. This is a benefit to the petitioner because it essentially splits the attorney’s fees and costs between the former co-owners.
We have handled many partition cases in land and property ownership, business breakups and divorce proceedings. Call Mackey Law Group for this and all your real property needs.
By: Catherine Mackey, Esq.
T.R. Smith, Esq.
Whether you are Buying or Selling real estate in Florida, you should hire an attorney to represent you. In the standard Florida real estate contract, the party paying for title insurance services has the right to select the title agent and closing agent. Did you know hiring an attorney to issue title insurance and provide closing services normally costs no more than hiring a non-lawyer title company? But, a title company, like a real estate agent, is prohibited from giving you legal advice and is not trained or skilled at even recognizing problematic legal issues. If given the choice, why not hire an attorney who is working for you, to protect your interests?
If you’re really smart, you will also want an attorney involved in the negotiation stages of the deal before the contract is signed by you. Real estate contracts contain many complex provisions that can be negotiated and which may have a real impact on you. An experienced real estate attorney who is looking out for your interests can make sure the contract is drafted with terms most favorable to you. This is why we always recommend hiring an attorney before signing a contract or making an offer. After that, it may be too late to affect the deal.
Although you may not think so, there are many legal issues which surface even during the simplest of closings. Just some of them are:
- Have you protected yourself and your personal assets? If you are buying rental property, you should seriously consider forming a legal entity, like an LLC or a corporation, to make the purchase. Holding the property in a legal entity can limit your personal exposure, if done correctly.
- Has the property been in foreclosure? This is especially common now in Florida and Manatee County and we have seen many title and other problems with properties having a foreclosure history. Having an experienced real estate attorney review the prior foreclosure will ensure that you are receiving good title.
- Are there possible encroachments of a fence or driveway? If so, that could impact your ability to resell the property in the future or could cost you a lot of money to resolve.
- Are there any hidden recorded exceptions that will affect how you use the property? As attorneys, we have are able to review the documents that affect your property and determine if there are any provisions that may be detrimental to you or your use of the property.
- Does the seller or their tenant want to stay in the possession of the property after closing? If someone remains in the property after closing, they become your tenant and are protected by Florida’s tenant-friendly landlord/tenant laws. This is something that must be addressed in the purchase and sale contract before you sign it.
Mackey Law Group, P.A. has been representing Buyers and Sellers in Commercial and Residential closings from the simplest to the most complex transactions and from contract to closing. We have been a title insurance agent with Attorneys’ Title Fund Services, Florida’s largest attorney agent title insurance company, for 25 years. Contact us when you are even thinking of Buying or Selling property and we’ll make sure your entire experience is a smooth one.
By: Catherine Mackey, Esq.
T.R. Smith, Esq.