Suit for Partition Magistrates Special Equities

Ellen: I had a question about this partition that you and Caleb have been talking about.

Attorney Tom Olsen: Okay.

Ellen: Is this a judge-commanded decision?

Tom: Ellen, let's put it this way. If there are co-owners of a piece of property, my understanding is that in the state of Florida, any one of them can force the sale of the property and there is no defense to it. A judge cannot deny it. Caleb, are you in agreement? Am I explaining it properly to Ellen?

Attorney Caleb Maggio: Yes, Tom. Basically, the partition lawsuit is you are asking a judge to enter an order that says all owners must sell the property. The answer to your question is yes. What happens if one of the co-owners says no? That's where the magistrate comes in. The judge appoints this magistrate and if a co-owner is going to refuse to engage in reasonable behavior to sell, sign a contract, things like that, the magistrate can step in and do it for them.

Tom: Ellen, have we answered your question for you?

Ellen: Yes. It's mainly about someone that's stubborn, digging in their heels, refusing. From what I'm hearing about your discussion, the judge commands it and it is a forced thing.

Tom: Yes. Are you a co-owner with this person? Is that what you're saying?

Ellen: No, it's not me. It's someone that I'm hearing, that I'm directly related to, but I'm not involved with it.

Tom: Ellen, let's take it to the next level with Caleb, if you don't mind. Let's just say that Ellen's friend is required-- The co-owner will not cooperate with the friend to get this piece of property, therefore, the co-owner is required to do a suit for partition. The co-owner is required to expend money on attorney's fees and court costs. Can that owner who brings that petition, suit for partition as a plaintiff, get reimbursed attorney's fees and court costs?

Caleb: Yes, Tom. The statute's very clear that all parties will share in the attorney's fees and costs. One of two things really happens. Either the opposing parties are going to help pay for some of your attorney's fees or the proceeds of the sale are going to be used to help pay for your attorney's fees at the end of the action.

Tom: I want to take it one more level and that is that in the suit for partition, the court has the ability to award special equities to different parties. It is not guaranteed that every owner is going to get an equal amount. What would be some situations where the court would say, "Okay, this owner is going to get a bigger share."?

Caleb: Tom, let's imagine there's a mortgage on the property. Say it's $1,000 a month and you have two owners. Let's say owner number one has paid that $1,000 for 12 months. Now the property has ordered to be sold and proceeds are being divided. If you're 50-50 owners, then both parties should have been contributing 500 towards that mortgage. The party that paid that $1,000 for 12 months is going to get essentially a refund from the proceeds in the amount of $500 a month for 12 months, $6,000.

Tom: Hey, Ellen, we'd love to assist you with that case. Tell your friend to call the Olson Law Group in Orlando. We assist clients throughout the state of Florida with estate planning, buying and selling real estate, suits for partition, landlord-tenant evictions, you name it, Ellen. We can assist you. We're the Olson Law Group in Orlando. You can find more about us at olsonlawgroup.com.

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