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The Florida Statutes

The 2020 Florida Statutes

Title VI
CIVIL PRACTICE AND PROCEDURE
Chapter 64
PARTITION OF PROPERTY
View Entire Chapter
CHAPTER 64
CHAPTER 64
PARTITION OF PROPERTY
PART I
GENERAL PROVISIONS
(ss. 64.011-64.091)
PART II
UNIFORM PARTITION OF HEIRS PROPERTY ACT
(ss. 64.201-64.214)
PART I
GENERAL PROVISIONS
64.011 Jurisdiction.
64.022 Venue.
64.031 Parties.
64.041 Complaint.
64.051 Judgment.
64.061 Commissioners; special magistrate.
64.071 Sale where nondivisible.
64.081 Costs; taxes; attorneys’ fees.
64.091 Personalty.
64.011 Jurisdiction.All actions for partition are in chancery.
History.s. 1, Mar. 14, 1844; RS 1490; GS 1939; RGS 3202; CGL 4994; s. 2, ch. 29737, 1955; s. 19, ch. 67-254.
Note.Former s. 66.01.
64.022 Venue.Partition shall be brought in any county where the lands or any part thereof lie which are the subject matter of the action.
History.s. 1, Mar. 14, 1844; RS 1491; GS 1940; RGS 3203; CGL 4995; s. 19, ch. 67-254.
Note.Former s. 66.02.
64.031 Parties.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.
History.s. 2, Mar. 14, 1844; RS 1492; GS 1941; RGS 3204; CGL 4996; s. 19, ch. 67-254.
Note.Former s. 66.03.
64.041 Complaint.The complaint shall allege a description of the lands of which partition is demanded, the names and places of residence of the owners, joint tenants, tenants in common, coparceners, or other persons interested in the lands according to the best knowledge and belief of plaintiff, the quantity held by each, and such other matters, if any, as are necessary to enable the court to adjudicate the rights and interests of the party. If the names, residence or quantity of interest of any owner or claimant is unknown to plaintiff, this shall be stated. If the name is unknown, the action may proceed as though such unknown persons were named in the complaint.
History.s. 2, Mar. 14, 1844; RS 1493; GS 1942; RGS 3205; CGL 4997; s. 11, ch. 29737, 1955; s. 19, ch. 67-254.
Note.Former s. 66.04.
64.051 Judgment.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. When the rights and interests of plaintiffs 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.
History.s. 4, Mar. 14, 1844; RS 1494; GS 1943; RGS 3206; CGL 4998; s. 19, ch. 67-254.
Note.Former s. 66.05.
64.061 Commissioners; special magistrate.
(1) APPOINTMENT AND REMOVAL.When a judgment of partition is made, the court shall appoint three suitable persons as commissioners to make the partition. They shall be selected by the court unless agreed on by the parties. They may be removed by the court for good cause and others appointed in their places.
(2) POWERS, DUTIES, COMPENSATION AND REPORT OF COMMISSIONERS.The commissioners shall be sworn to execute the trust imposed in them faithfully and impartially before entering on their duties; have power to employ a surveyor, if necessary, for the purpose of making partition; be allowed such sum as is reasonable for their services; to make partition of the lands in question according to the court’s order and report it in writing to the court without delay.
(3) EXCEPTIONS TO REPORT AND FINAL JUDGMENT.Any party may file objections to the report of the commissioners within 10 days after it is served. If no objections are filed or if the court is satisfied on hearing any such objections that they are not well-founded, the report shall be confirmed, and a final judgment entered vesting in the parties the title to the parcels of the lands allotted to them respectively, and giving each of them the possession of and quieting title to their respective shares as against the other parties to the action or those claiming through or under them.
(4) APPOINTMENT OF SPECIAL MAGISTRATE WHERE PROPERTY NOT SUBJECT TO PARTITION.On an uncontested allegation in a pleading that the property sought to be partitioned is indivisible and is not subject to partition without prejudice to the owners of it or if a judgment of partition is entered and the court is satisfied that the allegation is correct, on motion of any party and notice to the others the court may appoint a special magistrate or the clerk to make sale of the property either at private sale or as provided by s. 64.071.
History.ss. 5, 6, 7, 8, Mar. 14, 1844; RS 1495; GS 1944; RGS 3207; CGL 4999; s. 1, ch. 28200, 1953; s. 1, chs. 29685, 29928, 1955; s. 19, ch. 67-254; s. 55, ch. 2004-11.
Note.Former s. 66.06.
64.071 Sale where nondivisible.
(1) ORDER OF SALE.If the commissioners report that the lands of which partition is directed are so situated that partition cannot be made without prejudice to the owners and if the court is satisfied that such report is correct, the court may order the land to be sold at public auction to the highest bidder by the commissioners or the clerk and the money arising from such sale paid into the court to be divided among the parties in proportion to their interest.
(2) CONDITIONS OF SALE.For good cause the court may order the sale made on reasonable credit for part or all of the purchase money, but at least one-third of the purchase money shall be paid down unless all parties consent to credit otherwise. The purchase money not paid down shall be secured by a mortgage on the land and such other security as the court directs.
(3) CONFIRMATION OF SALE AND CONVEYANCE.The sale shall be reported to the court, unless sold by the clerk under s. 45.031, and the money arising therefrom paid into court and the sale approved by the court and a conveyance ordered before any conveyance pursuant to the sale is made.
History.ss. 8, 9, 10, Mar. 14, 1844; RS 1496; GS 1945; RGS 3208; CGL 5000; s. 19, ch. 67-254.
Note.Former s. 66.07.
64.081 Costs; taxes; attorneys’ fees.Every party shall be bound by the judgment to pay a share of the costs, including attorneys’ fees to plaintiff’s or defendant’s attorneys or to each of them commensurate with their services rendered and of benefit to the partition, to be determined on equitable principles in proportion to the party’s interest. Such judgment is binding on all his or her goods and chattels, lands, or tenements. In case of sale the court may order the costs and fees to be paid or retained out of the moneys arising from the sale and due to the parties who ought to pay the same. All taxes, state, county, and municipal, due thereon at the time of the sale, shall be paid out of the purchase money.
History.s. 11, Mar. 14, 1844; RS 1497; s. 1, ch. 4545, 1897; GS 1946; RGS 3209; CGL 5001; s. 1, ch. 57-130; s. 19, ch. 67-254; s. 344, ch. 95-147.
Note.Former s. 66.08.
64.091 Personalty.The laws applicable to partition and sale for partition of real estate are applicable to the partition and sale for partition of personal property and the proceedings therefor, as far as the nature of the property permits.
History.RS 1498; GS 1947; RGS 3210; CGL 5002; s. 19, ch. 67-254.
Note.Former s. 66.09.
PART II
UNIFORM PARTITION OF HEIRS PROPERTY ACT
64.201 Short title.
64.202 Definitions.
64.203 Applicability; relation to other law.
64.204 Service; notice by posting.
64.205 Commissioners.
64.206 Determination of value.
64.207 Cotenant buyout.
64.208 Partition alternatives.
64.209 Considerations for partition in kind.
64.210 Open-market sale, sealed bids, or auction.
64.211 Report of open-market sale.
64.212 Uniformity of application and construction.
64.213 Relation to Electronic Signatures in Global and National Commerce Act.
64.214 Access for all residents.
64.201 Short title.This part may be cited as the “Uniform Partition of Heirs Property Act.”
History.s. 2, ch. 2020-55.
64.202 Definitions.As used in this part, the term:
(1) “Ascendant” means an individual who precedes another individual in lineage, in the direct line of ascent from the other individual.
(2) “Collateral” means an individual who is related to another individual under the law of intestate succession of this state but who is not the other individual’s ascendant or descendant.
(3) “Descendant” means an individual who follows another individual in lineage, in the direct line of descent from the other individual.
(4) “Determination of value” means a court order determining the fair market value of heirs property under s. 64.206 or s. 64.210 or adopting the valuation of the property agreed to by all cotenants.
(5) “Equitable accounting” means considering contributions and adjustments of accounts between cotenants, which are related to the real property and are based upon such contributions and adjustments, s. 64.081, and common law.
(6) “Heirs property” means real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action:
(a) There is no agreement in a record binding all the cotenants which governs the partition of the property;
(b) One or more of the cotenants acquired title from a relative, whether living or deceased; and
(c) Any of the following applies:
1. Twenty percent or more of the interests are held by cotenants who are relatives;
2. Twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or
3. Twenty percent or more of the cotenants are relatives.
(7) “Partition by sale” means a court-ordered sale of the entire heirs property, whether by open-market sale, sealed bids, or auction conducted under s. 64.210.
(8) “Partition in kind” means the division of heirs property into physically distinct and separately titled parcels.
(9) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(10) “Relative” means an ascendant, descendant, or collateral or an individual otherwise related to another individual by blood, marriage, adoption, or law of this state other than this part.
History.s. 2, ch. 2020-55.
64.203 Applicability; relation to other law.
(1) This part applies to partition actions filed on or after July 1, 2020.
(2) Provided that a partition action is otherwise available under part I of this chapter, the court shall determine whether the property is heirs property. If the court determines that the property is heirs property, the property must be partitioned under this part unless all of the cotenants otherwise agree in a record.
(3) This part supplements part I of this chapter and, if an action is governed by this part, replaces provisions of part I of this chapter that are inconsistent with this part.
History.s. 2, ch. 2020-55.
64.204 Service; notice by posting.
(1) This part does not limit or affect the method by which service of a complaint in a partition action may be made.
(2) If the plaintiff in a partition action seeks notice by publication, and the court determines that the property is heirs property, then the court shall order the clerk of the court to issue a notice of action to the plaintiff in the form set forth in s. 49.08 and the plaintiff must, not later than 10 days after receipt, post the notice of action on the property that is the subject of the action.
History.s. 2, ch. 2020-55.
64.205 Commissioners.If the court appoints commissioners pursuant to s. 64.061, each commissioner, in addition to the requirements and disqualifications applicable to commissioners in part I of this chapter, must be disinterested and impartial and not a party to or a participant in the action.
History.s. 2, ch. 2020-55.
64.206 Determination of value.
(1) Except as otherwise provided in subsections (2) and (3), if the court determines that the property that is the subject of a partition action is heirs property, the court shall determine the fair market value of the property by ordering an appraisal pursuant to subsection (4).
(2) If all cotenants have agreed to the value of the property or to another method of valuation, the court shall adopt that value or the value produced by the agreed method of valuation.
(3) If the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, shall determine the fair market value of the property and send notice to the parties of the value.
(4) If the court orders an appraisal, the court shall appoint a disinterested real estate appraiser licensed in this state to determine the fair market value of the property assuming sole ownership of the fee simple estate. On completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court.
(5) If an appraisal is conducted pursuant to subsection (4), not later than 10 days after the appraisal is filed, the court shall send notice to each party with a known address, stating:
(a) The appraised fair market value of the property.
(b) That the appraisal is available at the clerk’s office.
(c) That a party may file with the court an objection to the appraisal not later than 30 days after the notice is sent, stating the grounds for the objection.
(6) If an appraisal is filed with the court pursuant to subsection (4), the court shall conduct a hearing to determine the fair market value of the property not sooner than 31 days after a copy of the notice of the appraisal is sent to each party under subsection (5), whether or not an objection to the appraisal is filed under paragraph (5)(c). In addition to the court-ordered appraisal, the court may consider any other evidence of value offered by a party.
(7) After a hearing under subsection (6), but before considering the merits of the partition action, the court shall determine the fair market value of the property and send notice to the parties of the value.

In addition to a determination of value under this section, the court shall determine the amount of the equitable accounting upon the request of any cotenant and shall appropriately adjust any price, purchase price, apportioned price, buyout, judgment, or partition granted under this part based on the results of the equitable accounting.

History.s. 2, ch. 2020-55.
64.207 Cotenant buyout.
(1) If any cotenant requested partition by sale, after the determination of value under s. 64.206, the court shall send notice to the parties that any cotenant except a cotenant that requested partition by sale may buy all the interests of the cotenants that requested partition by sale.
(2) Not later than 45 days after the notice is sent under subsection (1), any cotenant, except a cotenant that requested partition by sale, may give notice to the court that it elects to buy all the interests of the cotenants that requested partition by sale.
(3) The purchase price for each of the interests of a cotenant that requested partition by sale is the value of the entire parcel determined under s. 64.206 multiplied by the cotenant’s fractional ownership of the entire parcel.
(4) After expiration of the period in subsection (2), the following rules apply:
(a) If only one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall notify all the parties of that fact.
(b) If more than one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall allocate the right to buy those interests among the electing cotenants based on each electing cotenant’s existing fractional ownership of the entire parcel divided by the total existing fractional ownership of all cotenants electing to buy and send notice to all the parties of that fact and of the price to be paid by each electing cotenant.
(c) If no cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall send notice to all the parties of that fact and resolve the partition action under s. 64.208(1) and (2).
(5) If the court sends notice to the parties under paragraph (4)(a) or paragraph (4)(b), the court shall set a date, not sooner than 60 days after the date the notice was sent, by which electing cotenants must pay their apportioned price into the court. After this date, the following rules apply:
(a) If all electing cotenants timely pay their apportioned price into the court, the court shall issue a judgment of partition reallocating all the interests of the cotenants, disburse the amounts held by the court to the persons entitled to them, and direct the clerk of the court to record the judgment in the official records of the county where the property is located.
(b) If no electing cotenant timely pays its apportioned price, the court shall resolve the partition action under s. 64.208(1) and (2) as if the interests of the cotenants that requested partition by sale were not purchased.
(c) If one or more but not all of the electing cotenants fail to pay their apportioned price on time, the court shall give notice to the electing cotenants that paid their apportioned price of the interest remaining and the price for all that interest.
(6) Not later than 20 days after the court gives notice pursuant to paragraph (5)(c), any cotenant that paid may elect to purchase all of the remaining interest by paying the entire price into the court. After the 20-day period, the following rules apply:
(a) If only one cotenant pays the entire price for the remaining interest, the court shall issue a judgment of partition reallocating the remaining interest to that cotenant and reallocating the interests of all of the cotenants. The court shall also disburse the amounts held by the court to the persons entitled to them and direct the clerk of the court to record such judgment in the official records of the county where the property is located.
(b) If no cotenant pays the entire price for the remaining interest, the court shall resolve the partition action under s. 64.208(1) and (2) as if the interests of the cotenants that requested partition by sale were not purchased.
(c) If more than one cotenant pays the entire price for the remaining interest, the court shall reapportion the remaining interest among those paying cotenants, based on each paying cotenant’s original fractional ownership of the entire parcel divided by the total original fractional ownership of all cotenants that paid the entire price for the remaining interest. The court shall issue promptly a judgment of partition reallocating all of the cotenants’ interests, disburse the amounts held by the court to the persons entitled to them, promptly refund any excess payment held by the court, and direct the clerk of the court to record the judgment in the official records of the county where the property is located.
(7) Not later than 45 days after the court sends notice to the parties pursuant to subsection (1), any cotenant entitled to buy an interest under this section may request the court to authorize the sale as part of the pending action of the interests of cotenants named as defendants and served with the complaint but that did not appear in the action.
(8) If the court receives a timely request under subsection (7), the court, after hearing, may deny the request or authorize the requested additional sale on such terms as the court determines are fair and reasonable, provided the court ensures the due process rights of the nonappearing cotenants, subject to the following limitations:
(a) A sale authorized under this subsection may occur only after the purchase prices for all interests subject to sale under subsections (1) through (6) have been paid into court and those interests have been reallocated among the cotenants as provided in those subsections.
(b) The purchase price for the interest of a nonappearing cotenant is based on the court’s determination of value under s. 64.206.
History.s. 2, ch. 2020-55.
64.208 Partition alternatives.
(1) If any cotenant requested partition in kind, or if all the interests of all cotenants that requested partition by sale are not purchased by other cotenants pursuant to s. 64.207, or, if after conclusion of the buyout under s. 64.207, a cotenant remains that has requested partition in kind, the court shall enter a judgment of partition in kind unless the court is satisfied that commissioners appointed pursuant to s. 64.061 have considered the factors listed in s. 64.209 and found that partition in kind will result in prejudice to the cotenants as a group. In considering whether to order partition in kind, the court shall approve a request by two or more parties to have their individual interests aggregated. Such judgment of partition must include the legal description of the real property before partition, the legal description of each new parcel, and the name of each parcel’s owner and shall be recorded by the clerk of the court in the official records of the county where the property is located.
(2) If the court does not order partition in kind under subsection (1), the court shall order partition by sale pursuant to s. 64.210 or, if no cotenant requested partition by sale, the court shall dismiss the action.
(3) If the court orders partition in kind pursuant to subsection (1), the court may require that one or more cotenants pay one or more other cotenants amounts so that the payments, taken together with the value of the in-kind distributions to the cotenants, will make the partition in kind just and proportionate in value to the fractional interests held.
(4) If the court orders partition in kind, the court shall allocate to the cotenants that are unknown, unlocatable, or the subject of a default judgment, if their interests were not bought out pursuant to s. 64.207, a part of the property representing the combined interests of these cotenants as determined by the court and this part of the property shall remain undivided.
History.s. 2, ch. 2020-55.
64.209 Considerations for partition in kind.
(1) In determining under s. 64.208(1) whether partition in kind would result in prejudice to the cotenants as a group, the commissioners shall consider the following:
(a) Whether the heirs property practicably can be divided among the cotenants.
(b) Whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the value of the property if it were sold as a whole, taking into account the condition under which a court-ordered sale likely would occur.
(c) Evidence of the collective duration of ownership or possession of the property by a cotenant and one or more predecessors in title or predecessors in possession to the cotenant who are or were relatives of the cotenant or each other.
(d) A cotenant’s sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the cotenant.
(e) The lawful use being made of the property by a cotenant and the degree to which the cotenant would be harmed if the cotenant could not continue the same use of the property.
(f) The degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property.
(g) Any other relevant factor.
(2) The commissioners may not consider any one factor in subsection (1) to be dispositive without weighing the totality of all relevant factors and circumstances.
History.s. 2, ch. 2020-55.
64.210 Open-market sale, sealed bids, or auction.
(1) If the court orders a sale of heirs property, the sale must be an open-market sale unless the court finds that a sale by sealed bids or an auction would be more economically advantageous and in the best interest of the cotenants as a group.
(2) If the court orders an open-market sale and the parties, not later than 10 days after the entry of the order, agree on a real estate broker licensed in this state to offer the property for sale, the court shall appoint the broker and establish a reasonable commission. If the parties do not agree on a broker, the court shall appoint a disinterested real estate broker licensed in this state to offer the property for sale and shall establish a reasonable commission. The broker shall offer the property for sale in a commercially reasonable manner at a price no lower than the determination of value and on the terms and conditions established by the court.
(3) If the broker appointed under subsection (2) obtains within a reasonable time an offer to purchase the property for at least the determination of value:
(a) The broker shall comply with the reporting requirements in s. 64.211; and
(b) The sale may be completed in accordance with the laws of this state other than this part.
(4) If the broker appointed under subsection (2) does not obtain within a reasonable time an offer to purchase the property for at least the determination of value, the court, after hearing, may:
(a) Approve the highest outstanding offer, if any;
(b) Redetermine the value of the property and order that the property continue to be offered for an additional time; or
(c) Order that the property be sold by sealed bids or at an auction.
(5) If the court orders a sale by sealed bids or an auction, the court shall set terms and conditions of the sale. If the court orders an auction, the auction must be conducted under part I of this chapter.
(6) If a purchaser is entitled to a share of the proceeds of the sale, the purchaser is entitled to a credit against the price in an amount equal to the purchaser’s share of the proceeds.
History.s. 2, ch. 2020-55.
64.211 Report of open-market sale.
(1) Unless required to do so within a shorter time by part I of this chapter, a broker appointed under s. 64.210(2) to offer heirs property for open-market sale shall file a report with the court not later than 7 days after receiving an offer to purchase the property for at least the value determined under s. 64.206 or s. 64.210.
(2) The report required by subsection (1) must contain the following information:
(a) A description of the property to be sold to each buyer.
(b) The name of each buyer.
(c) The proposed purchase price.
(d) The terms and conditions of the proposed sale, including the terms of any owner financing.
(e) The amounts to be paid to lienholders.
(f) A statement of contractual or other arrangements or conditions of the broker’s commission.
(g) Other material facts relevant to the sale.
History.s. 2, ch. 2020-55.
64.212 Uniformity of application and construction.In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
History.s. 2, ch. 2020-55.
64.213 Relation to Electronic Signatures in Global and National Commerce Act.This part modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. ss. 7001 et seq., but does not modify, limit, or supersede s. 101(c) of that act, 15 U.S.C. s. 7001(c), or authorize electronic delivery of any of the notices described in s. 103(b) of that act, 15 U.S.C. s. 7003(b).
History.s. 2, ch. 2020-55.
64.214 Access for all residents.Notwithstanding any provision to the contrary in this part, cotenants owning real property that is not heirs property may agree to partition such real property under this part. All of the cotenants must jointly notify the court of such agreement.
History.s. 2, ch. 2020-55.