The Dos And Don’ts Of Estate Partition Actions
One of the benefits of owning property as joint tenants with the right of survivorship is that you have an undivided interest in the property. This generally means that none of the owners can sell their part of the property or encumber it without the others’ permission. However, when people have different ideas about what they want to do with a property, they may want to partition the property. This allows the property to be divided in portions that can be sold. If you are considering taking or responding to a partition action, having a knowledgeable lawyer on your side can help you understand your legal options and give you peace of mind. Consider contacting Fleurinord Law, PLLC at (888) 904-2297.
What Is a Partition Action?
A partition action is a request by an owner of property to divide the property. Under the Texas Property Code, joints owners or claimants of real property, including those with the right of survivorship, can ask the court to compel a partition of their interest in the property among the other joint owners or claimants of the property.
Under Title VI of the 2022 Florida Statutes, a partition action commences when an owner of the property prepares a complaint that describes the following:
- A description of the property to be partitioned
- The names and residences of all joint owners or interested persons
- The interest of each party
- The names, place of residence, or degree of interest of any owner or claimant
If the partition action is successful, the court will determine the rights and interests of all parties and orders the property to be partitioned.
When Do Partition Actions Arise?
Partition actions involve cotenants of property, who are often family members and others who are closely related to each other. These actions may arise when there are problems that arise in their relationships with each other, such as spouses divorcing or family members becoming estranged. These actions can also arise when business partners no longer want to be tied to the property, or when the property owners do not agree on how to use the property.
What Is a Letter Warning of Partition Action?
Before commencing a partition action, the party who wants to divide their interest in the property may send a letter warning of partition action. This provides a formal notice to the other owners of potential legal action. This notice provides an additional opportunity for the parties to try to reach an agreement about how to handle the property to avoid litigation.
How Do You Respond to a Partition Action?
Once the claimant partition action has been formally initiated the partition action by filing a complaint and serving it upon the other owner(s) along with a summons, it is important for interested parties to respond. If they do not, the petitioning claimant can get the relief they are requesting from the court without having to make a showing of their right to do so.
The summons you receive should state the deadline you have to file a response to the partition action. All documents must be filed by this deadline, with a copy provided to each of the other parties. The response should lay out whatever denials and defenses you wish to assert. This can be a highly technical process, but a knowledgeable lawyer from Fleurinord Law, PLLC can help.
How Do You Avoid a Partition Action?
If you have received a letter warning of partition action, take note. Carefully read the notice for any details about why another owner wants to partition the property. Often it is a good idea to reach out to them and try to resolve the matter, either alone or with legal help. There may be some underlying issue of which you are not aware that still offers a solution other than going to court.
Florida Partition Action: Buy All Shares
In Florida, Title VI provides a pathway whereby parties can avoid further legal action if one of the current owners notifies the court within 45 days of receiving the notice of the partition action that they intend to buy the shares of all the partitioning owners.
Mediation and Broker Agreements
Additionally, the parties may be able to negotiate a settlement or participate in mediation to reach a resolution. Sometimes, the parties may agree to use a broker to list the property and sell the property rather than draining some of their resources by going through litigation and a formal judicial sale.
How To Prevent an Estate Partition
Sometimes, you may not be able to stop the partition action itself. However, you may be able to convince the court not to partition the action. This process varies by state. According to the rules established by Title VI of the 2022 Florida Statutes, if the court determines the partition of the property would result in prejudice to the cotenants as a group, it will not order the partition.
The court considers several factors in making this determination, including:
- Whether the property can be practically divided among the cotenants
- Whether a partition of the property would cause a significant decrease in the aggregate fair market value of the property than if it were sold as a whole, considering the condition under which a court-ordered sale would occur
- Evidence of the timing of the ownership or possession of the property by a cotenant, as well as at least one other predecessor who had title or possession of the property who are relatives of the cotenant or each other
- Whether the cotenants have contributed their respective share of property taxes, insurance, and maintenance expenses associated with owning the property
- Whether the cotenants have improved or maintained the property
- A cotenant’s lawful use of the property and the extent to which that cotenant would be harmed if they could not be allowed to use the property in the same way
- The sentimental attachment a cotenant has to the property, including an attachment they have because their ancestors owned or lived in the home or due to another unique reason
The commissioners who decide these cases can also consider any other relevant factor. One factor does not conclusively decide the matter. Instead, the commissioners must consider the totality of all relevant factors and circumstances.
Contact an Experienced Estate Lawyer for Help
An estate partition action is a serious legal undertaking. Whether one is filing a partition action or giving a response, it is important to understand all of the options available in order to ensure the best possible outcome. If you are involved in a partition action in Florida or Texas, consider contacting an estate lawyer with Fleurinord Law, PLLC for help by calling (888) 904-2297.