Any co-owner of real property in Florida can force its sale through a partition action, regardless of ownership percentage. Under Fla. Stat. § 64.031, a tenant in common holding a 5% interest has the same right to file as one holding 95%. Florida courts treat the right to partition as absolute.

But the lawsuit itself involves commissioners appointed by the court, a formal accounting for every dollar each co-owner spent on the property, and a sale that often produces results well below fair market value. A co-owner who enters a partition action without understanding how the accounting works and what defenses apply risks losing tens of thousands of dollars on property they helped pay for.

Southron Firm, P.A. is a Tampa, Florida litigation firm that handles real estate litigation for co-owners on both sides of partition disputes.

Whether you are trying to force a sale or trying to prevent one, this article covers how the partition lawsuit works from the inside.

What Is a Partition Action?

A partition action is a lawsuit filed in Florida circuit court under Chapter 64 of the Florida Statutes that forces the division or sale of property when co-owners cannot agree on what to do with it. Any co-owner can file. The court does not require the filing party to show fault, hardship, or a reason for wanting out.

Partition Action: A civil lawsuit under Fla. Stat. §§ 64.011–64.091 that compels the division or sale of property held by two or more co-owners when the co-owners cannot reach a voluntary agreement.

The triggering event is disagreement. One co-owner wants to sell; the other refuses. The partition action breaks that deadlock by transferring the decision to a judge.

Tenants in Common: Two or more people who each own an undivided interest in the same property, with no right of survivorship. Each owner can sell, transfer, or encumber their share independently.

Tenants in common, joint tenants, and holders of partial interests acquired through inheritance, divorce, or partnership dissolution can all file. Ownership percentage does not matter. A minority co-owner has the same statutory right as a majority holder.

Partition in Kind vs. Partition by Sale

Florida law recognizes two forms of partition. The court determines which one applies based on whether the property can be physically divided without prejudice to any co-owner.

	Partition in Kind	Partition by Sale
What happens	The court physically divides the property into separate parcels	The court orders the property sold and divides the proceeds
When it applies	Property can be fairly divided without loss of value (§ 64.061)	Physical division would cause prejudice to one or more parties (§ 64.071)
Typical property	Large tracts of undeveloped land	Houses, condominiums, commercial buildings
Result	Each co-owner receives exclusive title to one parcel	Proceeds distributed proportionally after costs and accounting

Partition by sale is far more common. Most jointly owned property in Florida cannot be physically split without destroying its value. When the property is a house, a condominium, or a commercial building, the court will order a sale.

How the Partition Lawsuit Works in Florida

The process follows a set sequence under Chapter 64 of the Florida Statutes.

1. Filing the complaint. The co-owner files a partition complaint in the circuit court of the county where the property is located (§ 64.022). The complaint must describe the property by legal description, identify all co-owners, and state the ownership interest each party holds (§ 64.041).
2. Recording a lis pendens. The filing co-owner records a notice of lis pendens against the property, alerting anyone searching the title that a partition lawsuit is pending. This notice effectively prevents the property from being sold or refinanced during the case.
3. Appointing commissioners. The court appoints three commissioners, or a special magistrate for property that cannot be divided, to examine the property and report on whether it should be partitioned in kind or sold (§ 64.061).
4. Ordering an appraisal. The court or the commissioners obtain a professional appraisal to establish fair market value. Under the Uniform Partition of Heirs Property Act (§ 64.206), the court orders a licensed appraiser for qualifying properties, and the parties have 30 days to object to the valuation.
5. Conducting the accounting. The court reviews each co-owner’s financial contributions: mortgage payments, property taxes, insurance, repairs, and improvements. Credits and offsets are calculated before any proceeds are distributed.
6. Selling the property. If partition by sale is ordered, the property is sold at public auction (§ 64.071) or, for heirs property, through an open market sale with a licensed broker (§ 64.210). Proceeds are distributed according to ownership percentages after all adjustments.

An attorney experienced in Florida real estate litigation can assess whether filing or defending the partition action is the stronger financial position before either side commits to the process.

How Courts Account for Unequal Contributions

A co-owner who paid the mortgage, property taxes, and insurance on jointly held property is entitled to credits from the sale proceeds. Florida courts adjust the distribution to prevent one co-owner’s equity from being increased by the other’s expenditures.

The principle comes from Goolsby v. Wiley, 547 So. 2d 227 (Fla. 4th DCA 1989): one party’s equity should not be increased by the expenditures of the other.

Credits may be awarded for mortgage payments made beyond the co-owner’s proportionate share, property taxes, insurance premiums, necessary repairs, and improvements that increased the property’s value.

Equitable Accounting: A court determination of each co-owner’s financial contributions to the property, resulting in credits or offsets that adjust the final distribution of sale proceeds.

There is a critical offset. When the paying co-owner also occupied the property exclusively, the court may reduce their expense credits by the reasonable rental value of their exclusive use.

Under Adkins v. Adkins, 595 So. 2d 1032 (Fla. 1st DCA 1992), a co-owner in sole possession may owe the other co-owners rent for the period of exclusive occupancy. If that rental value exceeds the expense credits, the occupying co-owner receives nothing in the accounting.

This offset frequently surprises co-owners who assumed that paying the mortgage for years entitled them to a larger share.

A Florida litigation attorney can calculate whether the rental value offset will consume the expense credits before the case reaches the accounting stage.

Defenses and Counterclaims in Florida Partition Actions

The right to partition is absolute under Florida law, but several defenses can delay, modify, or reshape the outcome:

• Ouster. A co-owner who was wrongfully excluded from the property can claim the reasonable rental value of their lost use for the entire period of exclusion. This counterclaim can shift the accounting by tens of thousands of dollars, depending on the property’s rental market.
• Contractual waiver. If the co-owners signed a joint venture agreement, operating agreement, or divorce settlement that includes a waiver of the right to partition, the court may enforce it. Florida courts examine whether the waiver was knowing, voluntary, and supported by consideration.
• Laches. If one co-owner waited an unreasonable length of time to file and the delay materially prejudiced the other co-owner, the court can consider that delay when shaping the remedy. Laches does not bar the partition entirely, but it can affect the accounting.
• Buyout rights under the UPHPA. When the property qualifies as heirs property under the Uniform Partition of Heirs Property Act (§§ 64.201–64.214), co-owners who did not request the sale have 45 days to buy the interests of those who did (§ 64.207). This buyout window gives family members who want to keep inherited property a statutory right to prevent a forced sale at a price based on the appraisal the court ordered.

Why Most Partition Cases Settle Before Trial

Forced sales produce results below market value. When a property sells at auction under a court order, the sale price typically comes in 10% to 20% below what the property would bring in a conventional sale with proper marketing and a reasonable closing period. Both sides know this.

That dynamic pressures both sides toward settlement. The co-owner who wants to keep the property knows that a forced sale will destroy value for everyone.

The co-owner who wants out knows that a buyout negotiation may produce a faster, larger payment than an auction sale minus attorney fees and court costs.

Buyout: A voluntary agreement in which one co-owner purchases the other’s interest at a price both sides accept, typically derived from the property’s appraised value, avoiding the costs and value loss of a forced sale.

Most partition actions in Florida resolve through a negotiated buyout before the property reaches auction. The partition lawsuit is the mechanism that forces the unwilling co-owner to the negotiating table.

Without the lawsuit, the co-owner who refuses to sell has no incentive to cooperate. With it, both sides face a sale that will cost them money, and a buyout at or near appraised value becomes the rational outcome.

A co-owner considering a partition action should consult a Tampa litigation attorney before filing to evaluate whether a buyout or a forced sale produces the stronger financial outcome.

Attorney Fees and Costs in a Florida Partition Action

Under Fla. Stat. § 64.081, every party is bound to pay a share of the costs, including attorney fees, “in proportion to the party’s interest.” The court may order these fees paid from the sale proceeds rather than out of pocket.

The statute allows the court to award fees to attorneys whose work benefited the partition, even if only one co-owner filed the lawsuit. Under Harmon v. Harmon, 453 So. 2d 77 (Fla. 3d DCA 1984), the fee award requires an actual partition order.

If the case settles or is dismissed without a partition, the statutory fee provision does not apply. Filing fees, appraisal costs, commissioner fees, and the expenses of advertising the sale are all deducted from gross proceeds before distribution.

In a contested case with valuation disputes, expert testimony, and an extended accounting, these costs can consume a significant portion of the equity in the property.

When to Contact a Florida Partition Attorney

Contact a litigation attorney before filing or responding to a partition action if you are in any of these situations:

• You co-own property with someone who refuses to sell or buy you out
• You inherited property with family members who cannot agree on what to do with it
• You are going through a business dissolution that includes jointly held real property
• You received a partition complaint and need to respond within 20 days
• You have been paying the mortgage and expenses on property another co-owner also holds title to

An uncontested partition action, where both sides agree the property should be sold but disagree on distribution, can resolve in six to nine months. A contested case with disputes over accounting credits, valuation, and defenses can take 12 to 18 months or longer in Florida circuit court. The earlier litigation counsel is involved, the stronger the position going in.

Frequently Asked Questions

Q: What is a partition action in Florida? A: A partition action is a lawsuit under Fla. Stat. §§ 64.011–64.091 that forces the division or sale of property when co-owners cannot agree on what to do with it. Any co-owner can file, regardless of ownership percentage, and the right to partition is absolute under Florida law.

Q: Can one owner force the sale of jointly owned property in Florida? A: Yes. Under § 64.031, any co-owner, whether a tenant in common, joint tenant, or holder of a partial interest, can file a partition action to force a sale. The court does not require the filing party to show fault or a specific reason for wanting out.

Q: How much does a partition action cost in Florida? A: Costs include filing fees, appraisal expenses, commissioner fees, and attorney fees. Under § 64.081, costs are shared proportionally and can be paid from the sale proceeds. In a contested case, total litigation costs can range from $10,000 to $30,000 or more depending on the complexity of the accounting and valuation disputes.

Q: How long does a partition action take in Florida? A: An uncontested case typically resolves in six to nine months. A contested case with disputes over accounting credits, appraisal values, and defenses can take 12 to 18 months or longer in Florida circuit court.

Q: Can you file a partition action on inherited property in Florida? A: Yes. Inherited property is one of the most common subjects of partition actions. When the property qualifies as heirs property under the UPHPA (§§ 64.201–64.214), the co-owners who do not want to sell have a 45-day buyout window at the appraised value before any forced sale.

Q: What is the difference between partition in kind and partition by sale? A: Partition in kind physically divides the property into separate parcels. Partition by sale orders the property sold and divides the proceeds. Courts order partition by sale when the property cannot be physically divided without causing prejudice, which applies to most residential and commercial property in Florida.

Q: Who pays attorney fees in a Florida partition action? A: Under § 64.081, each co-owner pays a proportional share of attorney fees based on their ownership interest. The court may order fees paid from the sale proceeds. The fee award requires an actual partition order. If the case settles without a court-ordered partition, the statutory fee provision does not apply.

Q: Can a co-owner get credit for paying the mortgage in a partition action? A: Yes, but the credit may be reduced. A co-owner who paid the mortgage beyond their proportionate share is entitled to a credit from the sale proceeds. If that co-owner also occupied the property exclusively, the court may offset the credit against the reasonable rental value of their exclusive use.

Key Takeaways

• Any co-owner of real property in Florida can force a sale through a partition action under Fla. Stat. § 64.031, regardless of ownership percentage.
• Partition by sale is ordered when the property cannot be physically divided, which applies to most residential and commercial buildings in Florida.
• The court conducts an equitable accounting before distributing proceeds, awarding credits for mortgage payments, taxes, insurance, and improvements each co-owner contributed.
• A co-owner who occupied the property exclusively may have their expense credits offset by the reasonable rental value of their exclusive use.
• Heirs property qualifies for buyout rights under the UPHPA (§ 64.207), giving family members a 45-day window to prevent a forced sale.
• Forced sales at partition regularly produce results 10% to 20% below fair market value, which is why most cases settle through buyout negotiations before trial.
• Attorney fees and costs in partition actions are shared proportionally and can be paid from the sale proceeds under § 64.081.

Legal Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. The information contained herein is based on Florida law as of the publication date and may not reflect recent changes. Laws vary by jurisdiction and circumstance, and no single article can address every situation. Do not rely on this article as a substitute for professional legal counsel. If you face a legal matter related to the topics discussed, contact an attorney licensed in Florida to review your specific facts and circumstances. Southron Firm, P.A., is a Florida law firm based in Tampa. For a consultation regarding your litigation or estate planning matter, contact our office.