Different forms of joint ownership in Florida permit multiple individuals to own shares of real property, such as joint ownership with rights of survivorship, tenancy by the entirety, and tenancy in common.
In this article, you will discover how to partition Florida property owned under tenancy in common.
What is Tenancy in Common? – Understanding the Concept
In Florida, tenancy in common is the default form of joint ownership of property.
If a deed of a property does not contain express language stating the property is held under joint tenancy or tenancy by the entirety, the parties involved in the deed are considered tenants in common by default.
When a property is owned by tenants in common, each tenant has a share of interest. This percentage of interest can be transferred, sold, or even gifted. While other forms of joint ownership involve equitable shares, the ownership shares of tenants in common are not necessarily equal.
If the property’s deed does not provide a specific percentage of ownership, Florida law assumes each tenant owns a proportionate share of the property. For example, if two individuals own property under tenancy in common but the deed has no express language regarding each one’s percentage of ownership, each one owns 50% of interest in the property.
Is it Possible to Partition a Property Held Under Tenancy in Common?
If two or more tenants in common cannot agree on how a property should be managed or used, one of them can file for partition in court. While Florida partition is available in tenancy in common and joint ownership, it is not available for tenancy by the entirety.
As provided by Florida Statutes §64.031, “the action may be filed by any one or more of several joint tenants, tenants in common, or coparceners, against their cotenants, coparceners, or others interested in the lands to be divided.”
Florida Statutes §64.022 adds that “partition shall be brought in any county where the lands or any part thereof lie which are the subject matter of the action.”
Upon receipt of the claim, Florida Statutes §64.051 describes that “the court shall adjudge the rights and interests of the parties, and that partition be made if it appears that the parties are entitled to it.”
If the rights and interests of all the tenants “are established or are undisputed, the court may order partition to be made, and the interest of plaintiffs and such of the defendants as have established their interest to be allotted to them, leaving for future adjustment in the same action the interest of any other defendants.”
If it is possible to divide the property physically and equitably distribute distinct parts of it to each party involved (partition in-kind), the court may order a forced sale and equitably distributed the proceeds obtained in the sale among the disputing parties (partition by sale).
In cases involving court-ordered sales, partition by sale may happen through:
- A judicial sale by public auction
- A private sale conducted by a designated clerk or magistrate
- A private sale based on a stipulation or agreement between the parties involved in the action