Probate, trust, guardianship and inheritance litigation
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Partition Action Solves Jointly Owned Property Disputes

By:  Jeffrey Skatoff, Esq.

In the wake of a loved one’s death, an individual often learns that he or she has inherited real property owned by the decedent.  In our practice, the client will often be one of multiple beneficiaries of the same parcel of property.  Seemingly without exception, the beneficiaries do not agree as to how the property should be held, used, or managed.  Arguments may arise as to one, some, or all of the following issues:  (i) who will pay to maintain the property and in what proportion; (ii) who will assume responsibility for collecting and paying taxes on the property; (iii) who will live on or enjoy use of the property; (iv) whether to keep the property or sell it.

Each of the above issues—and many more—can be a source of fundamental discord between beneficiaries.  Fortunately, Florida law provides recourse for beneficiaries who find themselves mired in seemingly endless disagreement about how to manage inherited real property.  Any owner of indivisible real property (a house, condo, etc.) can initiate a Partition Action in an effort to obtain a court order directing sale of the subject property.  If successful, the beneficiaries of the property divide the proceeds from the court ordered sale in proportion to their respective ownership interests.

To illustrate, imagine that John Smith dies intestate (without a will) in Palm Beach County, where he owns a homestead.  John was not married at the time of his death, but is survived by his three adult children:  Alex, Bob, and Carole.  Under Florida law, ownership of the homestead inured to the children in equal one-third shares immediately upon John’s death.  The children have conflicting views on how to manage and use the property.

Alex, who is in the process of separating from his wife, would like to move into the residence.  He has informed his siblings that he does not intend to pay rent and will only pay one-third of the homeowner association dues and taxes.  Bob, who has two children in college, wants to sell the homestead so that he may use his share of the sales proceeds towards his kids’ tuition expenses.  Carole would prefer to sell the home, but does not mind Alex residing in the home on condition that he pay rent and retain sole responsibility for all expenses and taxes while living there.  Bob is concerned that (i) Alex’s occupation of the property would give Alex an unfair benefit; (ii) the property’s potential to generate money through sale or rental is being squandered; and (iii) unpaid association dues and taxes will continue to accrue while the siblings continue to fight.  The solution for Alex is to initiate partition proceedings.

Partition is unique in that it allows a party to seek relief in the absence of economic harm or damage.  Here, Alex need not wait until association fees or taxes are due. Alex’s right to relief vests with ownership; thus, a partition action may prevent disagreeing co-owners from incurring unnecessary expenses associated with the ownership of real estate.  By containing the smoke before it becomes a fire, partition limits the ability of discourteous co-owners to act spitefully or selfishly.  Importantly, Florida law also provides that the party seeking partition may be entitled to have his or her attorneys’ fees and costs’ paid “off the top” from the sales proceeds.

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Probate attorney Jeffrey Skatoff handles probate, trust, guardianship and inheritance litigation.

Jeffrey H. Skatoff, Esq.

Probate, Trust & Guardianship Litigation

Hourly & Contingency Fees Available

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(561) 842-4868