Partition Actions Under Florida Real Estate Law
Consider the following situation: You and your brother have just inherited your parent’s home in Coral Gables. They left it to you in their will and the will has finished the probate process. You don’t want to keep the property because you have neither the time nor inclination to keep the property maintained and you have had terrible experience being a landlord in the past. Your brother, on the other hand, does not want to sell the property. You are at an impasse. What do you do?
The Probate Process
First, we need to examine how the property passed to you and your brother. As the property was left to you in your parents’ will, it must pass through the probate process. As the estate is settled, the representative of the estate will disburse the proceeds of the estate, including the Coral Gables house. You and your brother inherit the house as tenants-in-common. This means that you each own the property outright. If the two of you get along and agree with the future use of the property, there is no issue. However, since, in our example, you do not agree, there is a definite problem. It is not the same as when you were kids and you could draw a line down the middle of the room and you would each stay in your own half. What do you do now?
If you cannot negotiate a settlement with your sibling, your option is to file a partition action. A partition action is a formal lawsuit in which a petitioner asks the court to divide the property. It follows the normal process that any civil lawsuit follows. One party files a complaint that is then answered by the other party. The trial court then sets a date and a trial is then held.
If the estate in this example is still open, the case would be filed in the probate court where the estate is currently in probate. If the estate is closed, the case would be filed in the court jurisdiction wherein the property exists.
The trial court will then take up the case. Several remedies are available to the court. The court can, in fact, divide up the property. However, in a case where the property includes improvements such as we have here, the court often will order the sale of the property. This is primarily because, as noted previously, it is hard to divide up a house between parties who do not get along. The proceeds of the sale will then be divided up amongst the parties. Parties are given credit in the disbursement of proceeds if they have paid more than their share of taxes, expenses and upkeep related to the property.
No matter how simple a partition sounds, it is anything but. Especially in cases involving inherited property and siblings, emotions can run extremely high. Old family wounds often come to the fore. Therefore, most property attorneys advise clients to think very carefully before proceeding down the partition path.
If you find yourself in a position where a partition action is necessary, it is very advisable to obtain solid representation. Florida property law is complex. The skilled professionals at the Coral Gables firm of P.A. Bravo have years of experience navigating the everyday complexities of Florida real estate law. Put our experience to work for you today by giving us a call at (305) 209-9019 and setting up your initial consultation.