3 Options After a Judge Orders a Partition of Real Estate

A partition action is a civil lawsuit that can be filed by the co-owners of a property when they can’t agree on how to manage or sell the property. Partition laws can be found in the Florida Statutes Chapter 64. After a judge enters an order of partition, how do the parties go about the sale? Well, there are three possible options for selling the property after a partition action:

The first one is to schedule the sale of the property at the court’s regularly held auction sale. Most courts handle a great deal of foreclosure cases (cases where banks are suing on debt collateralized by homes) and, in these cases, there’s always a need to sell property to collect on debt. The parties could schedule the sale of the property subject to the partition case at this court-supervised public sale.

The second option is to move for the court to appoint a special magistrate to conduct a private sale of the property. Under this option, the parties would submit a motion explaining how a public auction is not in the owner’s best interest (perhaps because the parties want that the property be sold at a certain price), and explain to the judge why a special magistrate that leads the private sale process is in their best interest. It is important to note that the special magistrate is not a judge, it is a neutral third party appointed by the court to oversee the private sale.

Note that a sale led by a magistrate is different from a private sale without the appointment of a special magistrate or agreement of the parties. In fact, courts disfavor unsupervised sales after partition. See Marks v. Stein, 160 So. 3d 502, 507 (Fla. 2d DCA 2015) (“Absent the parties’ agreement, resort to a private sale as a means of selling the property in a partition action is disapproved”).

The third option (in cases involving inheritance) is to move the court to determine that the property is “heirs’ property”. This is governed by section II of Florida Statutes Chapter 64, titled the “Uniform Partition of Heirs Property Act.” This offers an additional means of selling the property, but requires the court to make additional determinations regarding the case, namely whether the property is heirs’ property.

In order to be considered heirs’ property, a party has to show the property held in tenancy in common; there is no agreement in a record binding on all co-tenants that governs the partition of the property; title was acquired from a relative; and more than 20% of the interests in the property are held by an individual who acquired title from a relative. The parties have to agree within 10 days of the order determining the property as heirs’ property on which broker to use. If the parties don’t agree, the court will appoint a “disinterested real estate broker” licensed in Florida to offer the property for sale and establish a reasonable commission.

For more information regarding partition actions and real estate disputes, contact one of our experienced real estate attorneys at 305-570-2208. You can also email our lead attorney Eduardo directly at eduardo@ayalalawpa.com.  

We at Ayala Law PA are passionate about helping those in legal need, so please don’t hesitate to schedule a case evaluation with us online here. 

[The opinions in this blog are not intended to be legal advice. You should consult with an attorney about the particulars of your case].