In Florida, partition of real property is governed by Chapter 64 of the Florida Statutes. A partition action is an equitable remedy that allows co-owners of real property, such as tenants in common or joint tenants, to seek division of the property when they can no longer agree on shared ownership. Here is a summary of the law, including claims for setoffs, fair market rent, and damages upon sale as our Miami, FL real estate litigation lawyer — who is part of our team rated 10.0 on Justia — can explain:
1. Right To Partition
- Any co-owner of real property can file a partition action to request a division of the property (if feasible) or, more commonly, the sale of the property with proceeds divided among the co-owners. Chapter 64, Florida Statutes et seq.
- The right to partition is absolute; the court generally grants partition if a co-owner requests it, provided they have legal ownership. Condrey v. Condrey, 92 So. 2d 423, 426 (Fla. 1957)
- If physical division of the property is not feasible, the court will order a sale and divide the proceeds according to ownership interests. Fla. Stat. § 64.071.
2. Setoffs And Credits
- In partition actions, courts may consider equitable claims for setoffs or credits for payments made by one co-owner that benefited the property, such as mortgage payments, property taxes, insurance, or necessary repairs. See Joseph v. Estate of Joseph, 83 So. 3d 965, 969 (Fla. 3d DCA 2012); Bailey v. Covington, 317 So. 3d 1223, 1228-29 (Fla. 3d DCA 2021).
- Setoffs are typically granted to reimburse a co-owner who has paid more than their share of these expenses. Costa v. Costa, 951 So. 2d 924 (Fla. 4th DCA 2007); McCarthy v. McCarthy, 922 So. 2d 223 (Fla. 3d D.C.A. 2005); Biondo v. Powers, 743 So. 2d 161 (Fla. 4th DCA 1999).
- To qualify for setoffs, the claimant must demonstrate that the payments were necessary for the preservation, maintenance, or improvement of the property. Barrow v. Barrow, 527 So. 2d 1373, 1377 (Fla. 1988)
3. Fair Market Rent And Occupancy
- When one co-owner has exclusive use or possession of the property, they may owe fair market rent to the other co-owners, particularly if the non-occupying co-owners have been excluded from possession. Id.
- Fair market rent may be awarded based on the rental value of the property and the period of exclusive occupancy. Id.
- Courts are likely to apply fair market rent as an offset against claims for expenses or repairs by the occupying co-owner. Id.
4. Damages And Improvements
- A co-owner may claim compensation for improvements they made to the property if the improvements increase its value. However, such claims are only valid if the improvements were made in good faith and benefit all co-owners. Hernandez v. Hernandez, 654 So. 2d 171 (Fla. 3d D.C.A. 1994).
- If improvements increased the property’s value, the contributing co-owner might receive compensation for the value added upon the sale. Id.
5. Distribution Of Proceeds Upon Sale
- After accounting for setoffs, fair market rent, and any adjustments for repairs, maintenance, or improvements, the court will distribute the remaining proceeds from the sale according to each co-owner’s ownership interest. Morrison v. Smolarick, 334 So. 3d 675, 676–77 (Fla. 2d DCA 2022).
- Any disputes regarding the amount of fair market rent, setoffs, or improvements are typically resolved at a final hearing or trial in the partition action. Fla. Stat. § 64.051; see generally Joseph, 83 So. 3d at 970.
6. Additional Considerations
- Claims for partition must comply with procedural rules, including service of process on all interested parties and appropriate pleadings to detail claims for setoffs or rents.
- Florida courts generally aim to achieve a fair and equitable distribution that respects the contributions and use of the property by each co-owner.
In summary, partition in Florida provides a pathway for co-owners to equitably divide or sell real property, with the court considering any claims for setoffs, fair market rent, and damages. These claims ensure that each co-owner’s contributions and use of the property are fairly accounted for in the distribution of sale proceeds. If you need help with real estate claims, contact Perez Mayoral, P.A. for help; our lawyers are part of the Miami Dade Trial Lawyers Association, and they are ready to fight for your case.
