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Partition-Division of Land

General Right to Partition Land

Whenever land owners cannot get along and mutually agree among themselves to make a division of their land by a voluntary partition, then one or more of them has the right to demand partition of the property by filing a lawsuit. Thus, a complaint for partition may be filed by any joint tenant, tenant in common, or coparceners against their cotenants, coparceners, or others interested in the lands to be divided.

The remedy of partition is almost always available as a matter of general right to anyone who holds an undivided interests in land. An equitable interest in the property is insufficient to warrant partition. It has long been established in Florida that only those in possession or having the right to immediate possession are entitled to partition. The rule that only those in possession or having the right to immediate possession are entitled to partition is based on the intrinsic objectives of partition proceedings, namely, to avoid the inconveniences that result from a common possession of property and to enable the owners thereof to possess and enjoy their respective shares in severalty. The reasoning is that if a party who seeks partition has no immediate right of entry and possession, there are, as a result, no inconveniences of a joint or common possession of which he or she can complain. Also, because the primary objectives of partition cannot be accomplished by the division of an estate that may not come into possession for many years after such division, a court of equity will ordinarily deny relief to a claimant for compulsory partition where he or she has no present estate in possession.

The governing Florida statute states that partition must be made if it appears that the parties are entitled to it; when the rights and interests of the plaintiffs are established or are undisputed, the court may order partition to be made and the interest of the plaintiffs and such of the defendants as have established their interest to be allotted to them.

However, it is possible for one to waive his or her right to secure partition, or a person may be estopped from invoking the remedy because of a prior agreement, either express or implied, not to seek partition. Additionally, if under the circumstances of a given case, the trial court determines that equity will not result if the remedy of partition is granted, the court, in its discretion, may deny the remedy to a claimant therefor although the power of the trial court to deny partition should be invoked only in extreme cases where otherwise manifest injustice, fraud, or oppression would result if the remedy were granted.

Laches as a Defense to Partition

Laches may constitute a defense in a partition suit. If, under the circumstances of a given case, the trial court is compelled to the conclusion that equity will not result if the remedy of partition is granted, the court, in its discretion, may deny the remedy to a claimant for that reason.

Partitions and Divorce

It is a cardinal rule that an estate by the entireties is not subject to partition during the joint lives of the husband and wife. Such an estate is predicated on the unity of the husband and wife as one person in the eyes of the law. It depends on the existence of the marital relation for its continuance, and though both spouses are deemed to be equally interested in the property, their interest therein is not severable. A dissolution of marriage also called “divorce”, however, destroys an estate by the entireties, and transforms the husband and wife into tenants in common, as if they had never been married. In such a relation, as a general rule, each of the parties has an equal, undivided interest in the common property, and either party may obtain a partition thereof. While an estate in remainder or a reversion cannot be partitioned, this will not prevent an estate in possession from being partitioned by the cotenants thereof, because such persons have a present interest in the possession of the property. It appears that there is no legal or constitutional obstacle to the partition of homestead property.

Before entering a decree of partition, the court must determine whether the property, or any part of the property, is susceptible of partition. If the court determines that the property is susceptible of partition, then the court must enter a decree directing partition of such real estate. The court must appoint three suitable persons as commissioners to make the partition in accordance with the decree and the law. For a step by step guide to partitions, click here.

Want to Know More?

If you are considering partitioning a property or have been sued for partition, contact Miami attorney Miami Andrew J. Pascale today for a free consultation.

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