Quite often a parent adds his or her child’s name to the deed of the house as a probate avoidance technique without considering the full ramifications of such joint ownership of real property.
For instance, what if years after the child’s name was added to the deed, there is a fallout between the parent and his or her child. Can the parent just get his or her property back? Although it may have been a “simple” process of adding that child to the deed in the first place, it is never a “simple”process when it comes to removing somebody from the deed when the co-owners are feuding.
Unless a parent can agree to a buyout of his or her child’s interest and the child is then willing to execute a new deed with his or her parent whereby ownership would be transferred from the parent and the child to just the parent, the parent will have no choice but to resort to litigation to either recover the property or receive his or her proportionate share of the sale proceeds.
Generally, when joint owners have a fallout and no longer have the same vision for the property, an action for partition will have to be commenced in the county where the property is located.
Pursuant to Chapter 64 of the Florida Statutes, a partition action may be brought by any owner of the real property to sever the undivided, co-existing interests in the real property. It does not matter whether the joint owners are related or not; if a person owns real property with either his child, sibling, neighbor, friend, boyfriend, girlfriend, etc., that person may commence a partition action to sever the no longer desirable joint ownership.
Furthermore, it does not matter whether the owners hold the property as tenants in common or as joint tenants with right of survivorship. When joint owners of property can no longer agree on what to do with the property and/or decide to go their separate ways, any owner can then file an action for partition.
Such a partition action really has no defenses apart from the party’s prior waiver of his or her right to partition, whether discerned from the conduct of the parties throughout their course of dealings regarding the property or a written agreement.
By filing a partition action the owner seeks a division of the property among the owners and, if the property is not subject to a division because of the HOA rules or local land use ordinances, etc., the Court would then direct the sale of the property with the proceeds to be divided among all the owners. In the event the property would have to be sold, the Court would order either a public sale or a private sale.
Since each co-owner is liable for his or her proportionate share of the obligations and expenses associated with owning real property, most, if not all partition actions, contain a request for an accounting for rent, profit and monies expended. This enables the Court to apportion the sale proceeds among the owners so as to reimburse the right owner for the taxes, insurance, repairs, mortgage, improvements, etc. that they paid without reimbursement from the remaining owner(s).
The partition action does have an added expense when the property has to be sold as a sale would necessitate an appraisal, a listing of the property with a Realtor, as well as a payment to the person who would be appointed to sell the property. All these costs are in addition to the attorney’s fees and court costs, the typical costs of any litigation.
However, when it comes to attorney’s fees, Section 64.081 of the Florida Statutes does state that all parties are bound by the judgment and are required to pay a share of the costs, including attorney’s 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.” This, in essence, means that the plaintiff’s attorney’s fees would ultimately be shared by all.
Consequently, if you are contemplating joint ownership, you should first consider all the potential pitfalls of such joint ownership and be ready to resort to litigation in the event of a dispute with the remaining owner(s).