To file a partition action in Florida, you submit a partition complaint to the clerk of the circuit court in the county where the property sits, formally serve every other co-owner, and record a lis pendens against the property. The right to bring the case is absolute for any joint tenant, tenant in common, or coparcener, and the court will either divide the property physically or order it sold and split the proceeds. Chapter 64 of the Florida Statutes governs the process, and the case is filed in equity.1Florida Senate. Florida Code Title VI Chapter 64 Part I Section 64-011
Who Can File
Joint tenants, tenants in common, and coparceners can each bring a partition action against their co-owners.2Online Sunshine. Florida Statutes 64.031 – Parties Whether you inherited a fractional interest, bought a property with a friend, or ended up sharing title after a breakup, holding an ownership interest is enough. The other owners cannot block the filing, and you do not have to prove they did anything wrong.
What to Gather Before You File
Pull together four things before you draft anything:
- The recorded deed, which proves your interest and names every co-owner of record.
- The full legal description of the property, taken from the deed or the county property records.
- The names and current addresses of the other co-owners, to the best of your knowledge.
- Financial records for every dollar you have put into the property: mortgage payments, property taxes, insurance, repairs, and maintenance.
The financial records matter more than most filers expect. When the court eventually splits sale proceeds, it can credit co-owners who carried a disproportionate share of expenses. If you paid five years of property taxes while another owner contributed nothing, the court can adjust your share upward. Without documentation, you are asking the judge to take your word for it.
Drafting the Partition Complaint
The complaint is what officially opens the lawsuit. Florida law requires it to describe the property, name every owner and their address (or state that a name or address is unknown), list each owner’s fractional interest, and set out any other facts the court needs to sort out the parties’ rights.3Online Sunshine. Florida Statutes 64.041 – Complaint If a co-owner’s name is unknown, the statute lets you proceed as though that person were named.
Your complaint should say whether you want the property physically divided or sold, and it should include any claim for reimbursement of expenses you have carried. Ownership percentages come from the deed; the equitable adjustments come later, from the evidence.
Filing, Service, and Lis Pendens
Filing With the Circuit Court
You file with the clerk of the circuit court in the county where the property is located. The base filing fee for a circuit civil action in Florida is roughly $401. Unlike foreclosure filings, partition fees do not scale to the property’s value, though small county surcharges vary. Confirm the exact number with your local clerk before you file.
Serving Every Co-Owner
After filing, every named co-owner has to be formally served with the complaint and a summons. Florida requires that service be performed by the county sheriff or a certified process server.4Florida Senate. Florida Statutes 48.021 – Process; By Whom Served A court can also appoint a competent, disinterested person to serve process in certain situations.5The Florida Bar. Amendments to Florida Rules of Civil Procedure 1.070 You cannot serve the papers yourself.
Once served, a defendant has 20 days to file a formal response. Miss that window and you can move for a default judgment.
Recording a Lis Pendens
At the same time you file, record a lis pendens in the county’s official records. This is a public notice that the property’s title is tied up in active litigation. Without it, someone could buy the property or place a lien on it during the case and potentially take that interest free of your claims.6Online Sunshine. Florida Statutes 48.23 – Lis Pendens
The lis pendens has to include the names of the parties, the case number or filing date, the court where the case is pending, the property’s legal description, and a statement of the relief sought.6Online Sunshine. Florida Statutes 48.23 – Lis Pendens Skipping it is one of the more expensive mistakes in a partition case.
What Happens After You File
The Defendant’s Response
Co-owners can admit or deny your allegations and raise defenses in their answer, but partition defenses in Florida are narrow. Because the right to partition is absolute, a co-owner cannot simply argue they do not want to sell. Real fights usually turn on ownership percentages or on who paid what.
Mediation
Florida courts can refer any civil case to mediation, and either party can ask for it.7Online Sunshine. Florida Statutes 44.102 – Court-Ordered Mediation Many partition cases settle there, with co-owners agreeing on a buyout price or the terms of a private sale. Settlement usually beats a forced auction, which tends to bring in less than fair market value.
Judgment and Commissioners
If the case does not settle, the judge reviews the evidence and enters a judgment confirming each owner’s interest and ordering partition.8Online Sunshine. Florida Statutes 64.051 – Judgment The court then appoints three commissioners to carry the partition out.9Online Sunshine. Florida Statutes 64.061 – Commissioners
Physical Division or Forced Sale
Florida recognizes two forms of partition. Partition in kind physically splits the land into separate parcels. Partition by sale forces the whole property onto the market and divides the proceeds. Courts start with partition in kind, but when the commissioners find the property cannot be fairly divided without harming the owners’ interests, the court orders a sale.10Florida Senate. Florida Statutes 64.071 – Order of Sale
Sale is far more common in practice. A single-family home, a condo, or a small commercial lot rarely divides in a way that preserves value. Partition in kind tends to work only for large, undeveloped land where separate parcels make geographic and economic sense.
If the Property Was Inherited
Florida has adopted the Uniform Partition of Heirs Property Act, at Sections 64.201 through 64.214, which adds real protections when the property qualifies as “heirs property.” Property qualifies if it is held as a tenancy in common, at least one co-owner acquired their interest from a relative, at least 20 percent of the interests are held by relatives or people who inherited from relatives, and no written agreement among all co-owners governs partition.11Online Sunshine. Florida Statutes 64.202 – Definitions
When it qualifies, three things change. First, the court orders a professional appraisal by a disinterested licensed appraiser to set fair market value, unless all co-owners agree on the value or the court finds the cost outweighs the benefit. Second, any co-owner who did not request the sale can buy out the co-owners who did, at the appraised value multiplied by the selling owner’s fractional interest; the buying co-owners have 45 days to elect and at least 60 more days to deposit the purchase price with the court. Third, if no one buys out and a sale is ordered, the property is listed on the open market through a licensed broker at no less than the appraised value, rather than sold at a courthouse auction, unless the court finds sealed bids or an auction would produce a better result.12Online Sunshine. Florida Statutes 64.210 – Open-Market Sale, Sealed Bids, or Auction The open-market rule alone can be worth tens of thousands of dollars compared to a forced auction.
How the Sale Proceeds Are Split
After the sale, the court pays obligations in a set order. Costs of the sale, outstanding liens, and mortgages come off the top. What remains goes to the co-owners based on their ownership percentages, adjusted for any proven imbalances in expenses.
Attorney fees work differently in partition cases than in most Florida litigation. Under the common fund doctrine, the court can award attorney fees from the sale proceeds rather than making each side pay their own lawyer. The lawsuit creates a pool of money that benefits every co-owner, so the legal cost of creating that pool is shared. A co-owner who opposed the partition may still see attorney fees taken out of their share.
Mortgage and Tax Points to Know
An outstanding mortgage does not disappear in a partition sale. It gets paid from the proceeds before any co-owner receives anything. The due-on-sale clause in most residential mortgages lets the lender demand full repayment when the property changes hands, and federal law’s exceptions for death, divorce, or transfer to a spouse or children do not cover a court-ordered partition sale to a third party.13Office of the Law Revision Counsel. 12 U.S. Code 1701j-3 – Preemption of Due-on-Sale Prohibitions That rarely creates trouble at a normal closing, where the loan is paid off, but it matters if one co-owner plans to keep the property and assume the loan.
On taxes, the IRS treats your share of partition proceeds like any other real estate sale. You may owe capital gains tax on the difference between your basis and your share of the net price. If the property was your primary residence for at least two of the five years before the sale, you can exclude up to $250,000 in gain, or up to $500,000 filing jointly.14Internal Revenue Service. Topic No. 701, Sale of Your Home Inherited interests generally receive a stepped-up basis at the prior owner’s date of death, which often reduces or eliminates the gain. Rental or investment use does not qualify for the residence exclusion.
Timeline and Costs
A contested partition action in Florida usually takes anywhere from several months to over a year, depending on whether the case settles at mediation, whether it qualifies as heirs property (which adds appraisal and buyout steps), and how backed up the local docket is. Uncontested cases move faster.
Beyond the filing fee, plan on service of process costs (typically under $100 per defendant), the lis pendens recording fee, commissioner fees, and attorney fees. Heirs property adds a court-ordered appraisal and, potentially, a real estate broker’s commission. Attorney fees are often the largest single expense, and under the common fund doctrine they may end up shared among all co-owners out of the proceeds rather than carried alone by the person who filed.