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University of Miami Business Law Review

Harry M. Hipler

Document Type

Article

Abstract

This article focuses on partition of real and personal property in Florida in the 21st century. It discusses questions and issues about partitioning real and personal property, so that private lawyers who practice in a variety of areas can familiarize themselves with how partition proceedings work. Partition of real and personal property is not restricted to one area of the law. Instead, it relates to and bleeds over into a multitude of areas of the law making it necessary for all practitioners to be familiar with the area of partition. Partition is now provided in all 50 states, and Florida’s partition law is regulated by Chapter 64, Florida Statutes. Partition may seem simple and straight forward for the purpose of dividing jointly owned real and personal property, nonetheless the partition process can be cumbersome, unpredictable, and confusing. When joint owners of real and personal property – whether they are married, unmarried live-in companions, cotenants as business partners and shareholders, or beneficiaries of real and personal property – come to a decision to part ways they often find that breaking up their undivided interests is hard to do. Today’s lawyers’ will come in contact with disputes regarding joint ownership of real and personal property especially on account of an improving economy. Cotenants are no longer reluctant to divide and sell their real property on account of the increased value of their jointly held real property in light of a growing and stronger economy.

This article discusses issues pertaining to partition, including the following: stating a cause of action for partition and whether property is divisible or indivisible; exceptions to mandatory partition; what is property according to Chapter 64, Florida Statutes; treatment of a deposit and down payment when purchasing jointly titled real property; applicability of the statute of limitations to a partition actions; maximizing interests in real and personal property partition actions and the importance of a written agreement upon separation; contractual and statutory provisions for entitlement to attorney fees; other causes of actions that may be consolidated in a partition proceeding; personal and constructive service of process; when does jointly titled property vest in a cotenant upon death of an cotenant; setoffs and credits in jointly titled marital residence; the benefits and burdens of cotenants of jointly own real and personal property; homestead property and forced sale in partition; “ouster” of one cotenant and the effect of ouster on setoffs and credits; nonexistent and void ab initio marriage and its effect on joint ownership in partition; effect of Obergefell v. Hodges and same-sex marriage on partition.

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