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Frequently Asked Questions About Partitions (Division of Land)


When is Partition Needed?

Whenever persons interested in land as owners and cotenants cannot, by consent and mutual agreement among themselves, make a division of such land by a voluntary partition, then one or more of them has the right to demand partition of the property by judicial proceedings.

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What County are Partition Lawsuits Filed in?

Actions for partitions shall be brought in any county where the lands or any part thereof lie that are the subject matter of the action.

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What is a Partition “in kind”?

An order of sale may not be entered unless a proper determination is made that the property cannot be partitioned “in kind” without prejudice to the owners. “In kind” means split up. Thus, if a property can be split up into equal parcels (“in kind”) without harm or prejudice to its owners, it may not be sold at a judicial sale.

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I’ve Been Sued for Partition, Can I Recover My Attorney’s Fees?

Yes. In addition to the fee allowed for services rendered during the prosecution of the action for partition in the trial court, the attorney for the complainant in a suit for partition may be allowed a fee for the services rendered in defending the suit on an appeal from the trial court's decree in a proper case. Such fees may be allowed out of the proceeds of a sale of the property where the property is not partitioned in kind. Such fees cannot be challenged on appeal, however, where the challenging party concedes its opponent's entitlement to the fees in the court below.

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Can the Right to Partition be Waived?

Yes. The right to partition may be waived. Partition in Florida is governed by statute. See §§ 64.011–091, Fla. Stat. The general rule is that partition is a matter of right. However, the right to partition may be waived if in writing between the parties.

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Does a Pending Suit for Partition Survive the Death of a Joint Tenant?

A pending action to partition a joint tenancy with right of survivorship may not survive the death of one joint tenant and the action should be abated.

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Is a Testamentary Restriction on Right to Partition Valid?

Yes. A maker of will may direct that certain real property be held intact and not disposed of or partitioned for a period of years after the date of the maker’s death

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What are the Tax Aspects?

A partition of property is a tax-free action, whether undertaken voluntarily by the parties or enforced by a court order. If the partition is effected by a sale of the property, however, with a distribution of the proceeds to the cotenants, for tax purposes that is no longer a partition action. The parties have merely sold the property and the sale is subject to the usual tax rules that apply to property sales, however any prospective client should check with their own independent tax professional.

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Can Land Held in a Trust be Partitioned?

Yes. A trustee has the power to agree and consent to the partition of any property in which the trust may, at any time, hold an undivided interest. In connection with this power, a trustee may execute and deliver and accept all instruments of transfer, conveyance, or deed which may be necessary or proper in order to effectuate the partition.

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What Happens to a Mortgage and Other Liens in a Partition?

Mortgage liens retain their status as superior in right, title and dignity to the entitlement of the plaintiff to any funds realized from the partition action herein. As such, any and all funds realized or generated from the partition of the property must first be paid to the mortgage holder until such time as it has been paid in full all sums due and owing under the note secured by the mortgage on the land that is being partitioned. Where a sale of the property is directed in a partition proceeding, instead of its being partitioned in kind, all taxes, whether state, county, or municipal, that are due on the property at the time of the sale must be paid out of the purchase money.

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Does a Defendant Have a Right to a Jury Trial?

A defendant in a partition suit is not entitled to a jury trial on the question of legal title to the property sought to be partitioned.

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Can I Appeal a Partition Judgment?

Yes, but because partition is a subject of equitable jurisdiction, a trial court will be affirmed unless it is shown that the trial court abused its discretion in determining whether credits or setoffs are appropriate. Every presumption is in favor of the correctness of the rulings of the trial court, and a decree rendered by the chancellor, whenever it is based largely on questions of fact, will not be reversed unless the evidence clearly shows that it is erroneous.

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Can the Property Ordered to Partition be Sold at Judicial Auction?

Yes. By statute, the court may order the land to be sold at public auction to the highest bidder by the commissioners or the clerk of court. In short, once a trial court enters a judgment of partition by sale, partition should technically proceed under the partition statute, although courts may order it be sold at private sale per the request of the parties.

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How are the Sale Proceeds Distributed After the Liens are Paid?

Whenever the trial court orders that property that is not susceptible of partition in kind be sold at public auction to the highest bidder, the court may order the money arising from such sale be paid into the court to be divided among the parties in proportion to their interest taking into account any reimbursement for expenses incurred by one owner or other credits and set-offs.

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