Statewide Florida Probate, Trust & Guardianship Litigation
Attorney Jeffrey Skatoff handles real estate litigation, primarily related to probate and trust disputes. The most common real estate litigation arising out of probate is a partition action.
Partition actions in Florida are often used to force the sale of jointly owned property when the owners cannot agree amongst themselves what to do with the property. Florida law provides a general framework on how a partition action is to proceed, but the details are left to the discretion of the trial court.
The general rule is that partition is a matter of right. Indeed, “[m]uch of modern property law operates on the assumption that freedom to alienate property interests which one may own is essential to the welfare of society.” Metro. Dade County v. Sunlink Corp., (Fla. 3d DCA 1994).
The right to partition in Florida is governed by statute. See §§ 64.011-.091, Florida Statutes. A partition action in Florida “may be filed by any one or more of several joint tenants, tenants in common, or coparceners, against their cotentants, coparceners, or others interested in the lands to be divided. § 64.031, Fla. Stat. Section 64.051, Florida Statutes sets forth the court’s role in a partition proceeding:
The court shall adjudge the rights and interests of the parties, and that partition be made if it appears that the parties are entitled to it.
“In partition, the trial court must make a finding of the value of the … residence, order its sale, and then direct that the proceeds of the sale be impounded subject to ancillary proceedings to establish the credits due between the parties in order to determine the final amounts to be awarded to each of them.” Burnett v. Burnett, 742 So. 2d 859, 861 (Fla. 2d DCA 1999).
“The general rule is that partition is a matter of right, but there are rare exceptions.” Rose v. Hansell, 929 So. 2d 22, 23 (Fla. 3d DCA 2006). The rare exceptions include waiver, estoppel, and “extreme cases or where manifest injustice, fraud, or oppression will result if partition is granted.” Id.
The general course of a partition action in Florida is that partition is granted, the property sold, and the proceeds divided. However, sometimes partition actions in Florida are not so straightforward.
A 2015 case from Florida illustrates the practical difficulties that trial courts face when trying to force the sale of property in the midst of feuding family members. In Marks v. Stein, 2015 Fla. App. LEXIS 4025 (Fla. Dist. Ct. App. 2d Dist. Mar. 20, 2015), two sisters inherited a house from their deceased mother. Each inherited a one-half tenant-in-common interest in the property. The sisters disagreed about what to do with the house, and eventually one sister, Ms. Marks, filed the partition action seeking a sale. (Ms. Stein died and was replaced in the litigation by her husband, Mr. Stein.)
The trial court agreed that the property should be sold in a private sale, but also wanted to allow either sister to purchase the property. Ms. Marks filed a motion for summary judgment, which the court granted, in part, as follows, by issuing the following judgment:
The property is indivisible and cannot be partitioned in kind.
The Plaintiff and the Defendant shall engage [a named appraiser] to perform a real estate appraisal (“Appraisal”) determining the market value of the residence (the “Property”) . . . .
Plaintiff and Defendant shall both advance onehalf of the cost of the Appraisal. The parties shall engage [a named real estate sales person], a real estate agent . . . in Tampa, Florida, to list the Property for sale at the price specified in the Appraisal for a period up to and including June 30, 2014. The Parties may list the property “As Is”.
If a sale of the Property is concluded on or before June 30, 2014, the net proceeds shall be deposited with the Court to await disposition by the Court pursuant to Section 64.071, Florida Statutes (2013).
If a sale of the Property is not concluded on or before June 30, 2014, the Court shall enter an Order requiring the sale of the Property at a public auction pursuant to Section 64.071, Florida Statutes (2013).
The Parties may move to reset the judicial sale identified in paragraph 7 of this order if exceptional circumstances present themselves for doing so.
Either Party may make an offer at any time to purchase the other Party’s interest.
If during the Listing Period, any offers to purchase the property are received whereby one party wishes to accept the offer but the other party does not, the parties may seek emergency relief of the Court wherein the – 4 – Court shall decide whether the offer is reasonable and viable under the circumstance[s] and whether or not to accept the offer.
The Court retains jurisdiction to enter orders necessary to enforce this Judgment and the equitable distribution of sale proceeds and any award of costs and attorney’s fees.
Thus the final judgment gave the parties approximately six and one-half months to negotiate a private sale of the property.
The parties obtained an appraisal at $450,000, but the property was never listed. Instead, Mr. Stein made an offer to buy the property, and the parties made several counter offers with each other.
At a subsequent hearing, the court gave the parties a deadline to submit a sealed bid to purchase the property, by 5:00, January 24, 2014. The Court issued this order on January 21, 2014. Ms. Marks submitted a bid of $556,000, and Mr. Stein submitted a bid of $601,755. Before the Court ruled on which bid to accept, Ms. Marks filed a notice with the court that an unrelated third party had made an offer of $656,000.
At a further hearing, Ms. Marks argued that under the final judgment of partition, the parties had until June 30, 2014 within which to close as third party sale of the property. Mr. Stein argued that, in accordance with the January 21, 2014 order, he had submitted the high bid by the deadline of January 24, 2014. The Court ruled on February 5, 2014 that the offer made by the third party would be accepted, but that, if the third party did not close within 30 days, Mr. Stein’s offer of $601,755 would be deemed accepted.
The third party buyer backed out, and the Court then ordered that Mr. Stein’s offer would go through.
The appellate court boiled down the tangled series of judgments and orders, as follows:
Whether the trial court erred when it departed from the provisions in the earlier partition judgment and imposed an expedited bidding process that was neither stipulated to by the parties nor authorized by chapter 64, which governs actions for partition.
The appellate court’s framing of the issue pretty much sums up the court’s conclusion.
The court started its analysis by summarizing the three ways in which property can be sold in a partition action in Florida. The trial court may:
Commonly the trial judge affords the parties an opportunity to negotiate between themselves or arrange a private sale to a third party. If a trial court follows this procedure, two requirements must be met.
First, “the judgment must fix some reasonable deadline for such arrangements to be completed,” and any private sale is subject to approval by the court. Id. at 133-34.
Second, the judgment must provide that “if disposition of the [property] is not amicably resolved within a specified reasonable period of time,” judicial sale of the property shall take place in accordance with chapter 64.
In reversing the trial court’s procedure in this case, the appellate court explained as follows:
Although the extent to which the parties stipulated to the provisions of the partition judgment is not clear from our limited record, it is undisputed that they requested the opportunity to negotiate a private sale as their preferred alternative to a judicial sale. On this basis, the trial court was authorized to order the procedure for private sale approved in Carlsen. This is exactly what the trial court did in the partition judgment. In its judgment, the court allowed approximately six and one-half months for the parties to negotiate a private sale—by requiring them to list the property on the open market and authorizing them to either sell the property to a third party or to negotiate a buyout with each other. Consistent with the teaching of Carlsen, the trial court provided that if the property had not been sold by June 30, 2014, it would order a judicial sale in accordance with section 64.071.
Consistent with Carlsen, nothing in the partition judgment gave either party a basis to compel the other to accept his or her bid for the property. Instead, the judgment appropriately contemplated the opportunity for a private sale on the open market, whereby the parties could voluntarily negotiate a sale either between themselves or to a third party within a period of six and one-half months. But instead of ordering the parties to follow the procedure in the partition judgment and to engage the named real estate agent to list the property, the trial court in its January 21 order deviated from its charted course and imposed the January 24 deadline, by which the parties were to submit their highest bids to one another.
Consistent with Carlsen, nothing in the partition judgment gave either party a basis to compel the other to accept his or her bid for the property. Instead, the judgment appropriately contemplated the opportunity for a private sale on the open market, whereby the parties could voluntarily negotiate a sale either between themselves or to a third party within a period of six and one-half months. But instead of ordering the parties to follow the procedure in the partition judgment and to engage the named real estate agent to list the property, the trial court in its January 21 order deviated from its charted course and imposed the January 24 deadline, by which the parties were to submit their highest bids to one another.
Some other issues that can arise in real estate disputes, whether or not connected to a partition action, include the following:
In Morrison v. Smolarick, the court clarified the distinction between credits and damages in a Florida partition action and determined that an award of money damages in lieu of a credit against the proceeds of a partition sale are not permitted under Florida law.
Property was sold in a partition sale, but yielded no net funds because of a mortgage.
After the sale of the property, “the court impounds the fund consisting of the proceeds of sale and conducts proceedings to establish the credits due to the parties and to determine the final amount awarded to each.” McFall v. Trubey, 992 So. 2d 867, 870 (Fla. 2d DCA 2008). “[A] cotenant paying obligations of the property is entitled to a credit from the proceeds of the sale for the other cotenant’s proportionate share of those expenses.” Biondo v. Powers, 743 So. 2d 161, 164 (Fla. 4th DCA 1999).
In denying money damages, the court explained:
Neither the statute nor the case law provides for an award of money damages in lieu of a credit against the proceeds of the sale. Nor would it be consistent with the nature of the remedy of partition—either the property is divided or, if it cannot be divided, the funds from its sale are divided. As this court explained in McFall, 992 So. 2d at 870, the amounts sought after a partition sale are not “damages” but rather are simply “credits” to be awarded in the allocation of the fund.
In Brown v. Brown, 169 So.3d 286 (4th DCA 2015) the Court rejected an attempt to force a personal representative to partition land in Georgia.
Like lines in the sand, state boundaries determine a court’s jurisdiction over real property,” and thus the court lacked in rem jurisdiction to order the partition and sale of foreign property); Pawlik v. Pawlik, 545 So. 2d 506, 507 (Fla. 2d DCA 1989) (“In no event could the [circuit] court effect a partition of lands outside this state.”) (citation omitted); In re Roberg’s Estate, 396 So. 2d 235, 235-36 (Fla. 2d DCA 1981) (“When a testator executes a will devising lands in two or more states, the courts in each state construe it as to the lands located therein as if devised by separate wills.”) (citations omitted).
To partition property from outside this state, the personal representative needs to open an ancillary action in Georgia. See § 64.022, Fla. Stat. (2012) (a suit for partition “shall be brought in any county where the lands or any part thereof lie which are the subject matter of the action.”).
As explained in Hirchert v. Hirchet, 65 So.3d 548 (5th DCA 2011):
[I]t may not be doubted that a court of equity in one state in a proper case could compel a defendant before it to convey property situated in another state.” (citing Fall v. Eastin, 215 U. S. 1, 8 (1909))); Fall v. Eastin, 215 U. S. 1, 11-12 (1909) (holding that a court of equity can order a person over which it has jurisdiction to convey title to real property located in another state, but the court cannot itself transfer title because it does not have jurisdiction over such real property); Gardiner v. Gardiner, 705 So. 2d 1018, 1020 (Fla. 5th DCA 1998) (holding that a New York court had jurisdiction to a order a property owner to execute a quitclaim deed for property located in Florida).
Section 64.081, Florida Statutes, governs attorney fees in a partition action and provides:
Every party shall be bound by the judgment to pay a share of the costs, including attorneys’ fees to plaintiff’s or defendant’s attorneys or to each of them commensurate with their services rendered and of benefit to the partition, to be determined on equitable principles in proportion to the party’s interest.
As explained in Whistson v. Advocate 3413, 2D21-609 (2nd DCA 2022):
Section 64.081 is not a prevailing party statute. To the contrary: Pursuant to this statute, each party to a partition action must pay a share of the attorney’s fees to the plaintiff’s attorney, the defendant’s attorney, or to each of them. The share is to be set with reference to the services rendered by the attorney(s) that are of benefit to the partition—”to be determined on equitable principles in proportion to the party’s interest.” Fernandez-Fox v. Reyes, 79 So. 3d 895, 897 (Fla. 5th DCA 2012) (quoting § 64.081). Moreover, the apportionment of attorney’s fees under section 64.081 “has been interpreted to mean that the majority interest should bear the greater proportion of the fees awarded to his own attorney, as well as to the attorney for the minority interest, and the minority interest similarly should bear a share of fees in proportion to his interest.” Id.
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