Some types of costs and fees that can be expected in civil cases include expert witness fees, court filing fees, and administrative fees attendant to a variety of litigation-related services.

It is worth noting that a prevailing party in litigation may be able to recover legal fees, as well as costs and charges, under a provision of Florida law.

Fla. Stat 57.041 – Costs; Recovery from Losing Party 

Florida law provides that parties who recover judgments can recover all of the legal costs and charges included in the judgment. (There is an exception for executors or administrator actions when they are not liable for costs).

The District Court of Appeal of Florida, Fourth District, considered this law, and the recovery of attorneys’ fees and costs by the prevailing party, in Roberts v. Third Palm LLC, a case decided by the court at the end of July.

Roberts v. Third Palm LLC was a lawsuit between a real estate agent and a developer. The agent brought the lawsuit, seeking to recover compensation from the developer for services and advice she had allegedly provided.

The trial court granted summary judgment in favor of the developer, and the appellate court affirmed that decision. The trial court had also denied the developers’ request for fees and costs; the appellate court reversed that part of the trial court’s decision that denied the request for costs.

In its opinion, the appellate court noted that if a party makes the reasonableness of costs and fees an issue, then the prevailing party, who is seeking to recover the costs and fees, has the burden of establishing the reasonableness of the costs and fees.

According to the appellate court’s decision, the reasonableness of the costs and fees was at issue in this case. The developer filed a motion to determine its entitlement to fees and costs, filed an affidavit that listed the costs, and claimed these costs to be reasonable and necessary.  The agent disputed the reasonableness of both the fees and the costs.  The trial court held a hearing, focused on the fee issue, and then denied the motion for fees and costs. However, the court’s order did not address why the court found that the developer was not entitled to recover costs.

The appellate court explained that a trial court cannot deny the party obtaining judgment recovery of its lawful costs. The court concluded that in this case, the trial court erred in finding that the developer was not entitled to costs, and reversed the proceeding for remand to the trial court so that court could hold a hearing to consider the reasonableness of the costs.

If you are involved in or assessing a claim in real estate litigation, or other business litigation, it is important to understand the types of fees and costs that can be anticipated. If you would like to know more about this subject, contact the Fort Lauderdale real estate lawyers at Sweeney Law.

Resource:

scholar.google.com/scholar_case?case=11585070271741118203&q=roberts+v.+third+palm+&hl=en&as_sdt=6,33

https://www.sweeneylawpa.com/new-construction-sales-and-sales-of-existing-homes-recent-trends-during-covid-19-pandemic/

Home Construction Increases, Even in Hotspot States 

Home sales for the country’s fifth largest construction company saw a huge increase last month – with sales nearly double from the same time period one a year ago – as reported in CNBC’s recent post. As has been the case in many other industries that have adapted to the changes wrought by the pandemic, technology has undoubtedly had a great hand in allowing for the increase in new home construction sales. One specific new trend that is credited as a potential reason for the increase in home construction sales is the availability of virtual appointments. Low mortgage rates are another factor fueling the increase, according to the CNBC report. 

Sales of Existing Homes 

Pending sales of existing homes were up considerably in May, compared to April, of this year, according to CNBC. According to the National Association of Realtors, this trend continued in June, with an increase of over 20 percent in existing home sales nationally from May to June. In the South, the reported rate of increase was even higher – up to 26 percent. As is the case with new home construction sales, the availability of virtual tours and low mortgage rates are some of the reasons supporting the increase in sales of existing homes across the United States. 

Considerations for Buyers of New or Existing Homes 

Buyers of new and existing homes, especially first-time buyers, need to be aware of many cautions and considerations that come into play when evaluating a home for purchase, as well as in ultimately buying a new home. As a result, it is wise to consult a lawyer with experience in this area prior to signing a contract to buy a home.

Among the services that a lawyer can provide in connection with a home purchase are:

• review of the purchase and sale agreement (contract)
• review and investigation of “title” to the property you are purchasing (this may include investigating whether there are existing liens that need to be paid and other ownership issues, if any, and obtaining title insurance)
• review of your home financing options
• review of your anticipated payment obligations (mortgage payments, taxes, insurance)
• attendance at the real estate closing

While it is not necessary that you retain a lawyer in order to purchase a Florida property, the services that a lawyer can provide, including those listed above, can be invaluable to the buyer.

(In addition, if you are the seller of a property, an experienced lawyer can help with such matters as contract review, title considerations (if any), and attending the closing).

If you are considering buying a home in Florida, whether the home is newly constructed or existing, and need legal assistance with the purchase, contact a Fort Lauderdale real estate attorney at Sweeney Law.

Resources:

nar.realtor/newsroom/existing-home-sales-climb-record-20-7-in-june

cnbc.com/2020/06/29/coronavirus-update-pending-home-sales-spike-a-record-44point3percent-in-may.html

cnbc.com/2020/07/08/taylor-morrison-sees-strongest-home-sales-in-virus-hot-spot-states.html

https://www.sweeneylawpa.com/residential-evictions-and-foreclosures-in-the-age-of-covid-19/

Given that shelter is considered a basic requirement, residential home security and stability is obviously a key to overall stability and physical and emotional health.  According to a recent report in the South Florida SunSentinel, one third of Floridians reported missing a rent or mortgage payment last month, based on a United States Census Department Survey, and the same fraction of residents anticipated being unable to make their rent or mortgage payments this month.

For now, based on an Executive Order issued by Governor DeSantis on June 30^th, 2020 (which extended three prior similar executive orders), evictions currently pending in Florida are on hold until the end of the month (specifically, until 12:01 am on August 1, 2020). The Governor’s order specific suspends and tolls:

• any law that provides for a mortgage foreclosure action
• any law that provides for an eviction cause of action if it relates to nonpayment of rent by residential tenants due to the COVID-19 emergency

The Governor’s June 30^th Executive Order provides relief for now for well over

2500 Floridians whose evictions are currently pending in the state, according to the SunSentinel.

In addition, for properties covered by certain federal mortgage and rent programs and subsidies, there is a federal moratorium against foreclosures and evictions. According to the Federal Housing Finance Agency (FHFA), Fannie Mae and Freddie Mac have extended their moratorium on foreclosures and evictions for single-family mortgages until at least August 31, 2020. The foreclosure moratorium applies to Enterprise-backed, single-family mortgages only. Also, under the federal CARES Act, Act imposes a temporary moratorium, through July 24, 2020, has been imposed on evictions for tenants living in housing accommodations covered by the law, which, according to the Consumer Financial Protection Bureau (CFPB), includes most tenants in federal subsidized or federal backed housing.

Under normal procedures, absent the COVID-19 pandemic and the moratorium on evictions, landlords whose tenants are delinquent on rental payments can send then the landlord can give the tenant a “three-day notice,” which gives the tenant an option of either paying overdue rent or leaving the premises.  If the tenant does not either pay overdue rent or leave, Florida law generally allows the landlord to file an eviction suit after the three days have passed.

The COVID-19 pandemic has led to a number of state and federal laws designed to provide relief to citizens struggling economically in these challenging times. If you are a tenant, homeowner or landlord, and have questions about the application of any of these laws, contact Sweeney Law to speak with an experienced Fort Lauderdale real estate lawyer.

Resources:

flgov.com/wp-content/uploads/orders/2020/EO_20-159.pdf

consumerfinance.gov/coronavirus/mortgage-and-housing-assistance/renter-protections/

fhfa.gov/Media/PublicAffairs/Pages/FHFA-Extends-Foreclosure-and-Eviction-Moratorium-6172020.aspx

https://www.sweeneylawpa.com/florida-condominium-law-deadbeat-lists-and-the-consumer-collection-practices-act/

In Williams v. Salt Springs Resort Association, the plaintiff, who was the alleged delinquent property owner, sued her condominium association, claiming that by including her name on a list that was publicly posted, the condominium association violated a provision of Florida’s Consumer Collection Practices Act.

Florida Consumer Collection Practices Act 

The specific law that the plaintiff in the Williams case claimed that the condominium association violated was a provision of Florida’s Consumer Collection Practices Act. There  is a provision of this Act  that specifically prohibits the posting or publishing (or threatening or causing the posting or publishing) of individual names or lists of names – known as “deadbeat lists” – in order to collect or attempt to collect consumer debts.

The question that the Williams court had to decide was whether the debts involved — condominium assessments – constituted “consumer debts.” In a 1997 case, the court had decided that assessments owed to condominium associations did not qualify as “debt” under the Florida’s Consumer Collection Practices Act. Since that time, however, other courts, including one case decided last year by the District Court of Appeal of Florida, First District, have decided differently. In fact, the court noted that since 1997, federal courts have unanimously decided that condominium association assessments can be “debt.”

In the Williams case, the court ultimately decided to “recede” from the rationale of its 1997 decision.

What did the Court Decide in the Williams Case? 

In order to find that the prohibition of Florida’s Consumer Collection Practices Act applied to the condominium’s conduct in this case, the court had to find that the payment owed by the condominium owner to the condominium association arose out of

• a property, insurance or services transaction
• that was primarily for personal, family or household purposes

The purchase of the condominium was clearly a property transaction for personal, family or household purposes, the court found. The key issue was then whether the plaintiff’s obligation to pay the assessments arose out of this transaction. To determine this issue, the court referred to another law, Florida’s Condominium Act.

Based on the provisions of the Condominium Act – which include allowing condominium associations to collect assessments, providing that condominium owners are responsible for assessments that become due while they own their units, and providing that the obligation to pay assessments originates when the condominium owners acquire their units –  the court found that the plaintiff’s obligation to pay the assessments arose from the property transaction; or, in other words, from the purchase of her unit. As a result, the court “receded” from its earlier 1997 decision which held that assessments are not “debts” under the Florida Consumer Collection Practice Act.

If you have questions about this court decision, or would like to know more about the treatment of obligations owed to or by condominium associations, contact an experienced Fort Lauderdale real estate lawyer at Sweeney Law.

Resources:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0718/0718ContentsIndex.html

scholar.google.com/scholar_case?case=6882103504873071277&q=construction+contract&hl=en&scisbd=2&as_sdt=4,10&as_ylo=2020

https://www.sweeneylawpa.com/the-rise-of-digital-real-estate-closings/

• Gambling
• Airlines
• Hotels
• movie theaters
• live sports
• Cruises
• Shipping
• Automakers
• oil and gas
• Retail
• food service.

Residential real estate is one more business that has been greatly affected by the pandemic, from the new prevalence of virtual home showing videos to an emerging trend that allows for digital real estate closings. By early April of 2020, the residential real estate industry had begun to offer and incorporate accommodations such as curbside and remote closings as an alternative, to the extent possible, to  traditional onsite office closings, according to an article published at that time by Forbes.com.

Among the hurdles that must be overcome in order to allow for a completely digitalized closing is the notarized signature requirement. Generally, a requirement that a signature be notarized requires the signatory and the notary to be physically present in the same place in real time. In some states, notaries can witness and document signatures online, without the need for the signatory and notary to be physically present in the same place at the same time. As reported by Forbes.com in late April, more than half of the states in the country do not allow notaries to notarize signatures remotely online.

Remote Online Notarization Allowed by Florida Law 

In January of this year, the state of Florida first began allowing for online notarization. Since that time, according to the Miami Herald, the residential real estate closing process had been tending towards accomplishing more of the transaction online, with the COVID-19 pandemic moving that trend along even further.

Fla. Stat 117.021, which became effective on January 1, 2020, is the law that allows for online notarization in Florida. This law applies to “any document,” so that any document that must be notarized can be notarized electronically.

The law imposes specific requirements on notary publics and their signatures if online notarization is used. For example, the notary public’s electronic signature must be:

• unique to the notary public
• capable of independent verification
• under the notary public’s sole control (including using access protection devices such as passwords or codes under control of the notary public)

In addition, the notary public’s signature must be attached to or logically associated with the document so that any alteration to the document made after its notarization will be evident.

In some cases, documents that need to be notarized must be accompanied by the notary public’s seal. In the case of electronic notarization, the law provides that the seal requirement is satisfied if the notary’s signature contains:

• the notary public’s full name
• the words “Notary Public State of Florida”
• the expiration date of the notary public’s commission
• the notary public’s commission number

For more information about remote or virtual closings, or if you would like to discuss a potential or pending residential real estate purchase or sale, contact the experienced Fort Lauderdale real estate attorneys at Sweeney Law.

Resources:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0100-0199/0117/Sections/0117.021.html

usatoday.com/story/money/2020/03/20/us-industries-being-devastated-by-the-coronavirus-travel-hotels-food/111431804/

forbes.com/sites/brendarichardson/2020/04/01/from-curb-service-to-porch-signings-title-companies-get-creative-with-social-distancing-options-for-closings/#394cedd92192

miamiherald.com/news/business/real-estate-news/article241752086.html

https://www.sweeneylawpa.com/real-estate-markets-and-coronavirus-some-facts-and-current-trends/

National Statistics and Forecasts 

Before the pandemic struck, home prices were on the rise nationally. According to a CNBC report, home prices were rising across the nation in February, buoyed by low mortgage rates and limited supply relative to strong demand. Since the pandemic, however, demand has fallen in the face of a lowered supply. Boca Magazine shares Wells Fargo’s forecast for a significant drop in sales of new and existing homes for this month and last throughout the United States, noting that mortgage applications since early March have dropped by almost 30 percent nationally.

Local Statistics and Projections 

According to the South Florida Sun Sentinel, the real estate market in South Florida is still moving, albeit more slowly. Considerations for Florida residents can be more nuanced than straightforward home purchase and sale statistics indicate, however, particularly at the local level.

For example, as reported by WLRN, 40 percent of South Florida residents rent their homes, and most spend at least 30 percent of their income on rent. Obviously, continued effects on income for South Florida residents will further complicate this equation. Currently, there is some relief as a statewide moratorium on mortgage foreclosures and evictions is in effect through mid-May in accordance with an executive order issued by Governor Desantis.

Also of concern for residents of the Sunshine State is what the future holds for commercial landlords and tenants. May South Florida businesses are among those that have been harshly and directly affected by COVID-19, such as hotels, bars, and restaurants.

Strategies and Considerations for Future Property Owners and Tenants 

Going forward, landlords and tenants are seeking out means for reducing or at least providing increased tolerance for increased risks created in uncertain times. Among potential means of mitigating risk are two types of contract clauses:

• clauses that specifically address the COCID-19 and its effects on a sale or lease
• force majeure clauses

Clauses that specifically address COVID-19 can be tailored to a specific sales contract or lease, to allow for extensions of important dates, for example, or to allow a party a safety net for or tailored relief in the event of nonperformance.

Force majeure clauses are not unusual to real estate and other contracts. A force majeure, according Merriam-Webster, is a superior or irresistible force, or, for purposes of the more common and related legal interpretation, an event or effect that cannot be reasonably anticipated or controlled. Force majeure clauses can provide a way for a party to be excused from performance of some or all obligations under a contract for reasons that are spelled out in the contract’s clause, such as, for example, weather extremes (hurricanes, floods) or other natural or manmade disasters (earthquakes, acts of terrorism, for example.)

Novel considerations based on current conditions should be analyzed by anyone considering buying, selling and renting real estate in uncertain times. If you are interested in learning more, contact the experienced Fort Lauderdale real estate lawyers at Sweeney Law.

Resources:

cnbc.com/2020/04/28/case-shiller-home-prices-were-gaining-before-coronavirus-shutdown.html

flgov.com/wp-content/uploads/orders/2020/EO_20-94.pdf

sun-sentinel.com/real-estate/fl-ne-coronavirus-real-estate-20200423-t4ikafksnjeujbgmxuydprjyfm-story.html

wlrn.org/post/sunshine-economy-south-florida-real-estate-and-coronavirus#stream/0

bocamag.com/coronavirus-recession-real-estate/

https://www.sweeneylawpa.com/landowners-dock-rights-riparian-and-littoral-rights-under-florida-law/

Riparian and Littoral Rights 

Included among landowners’ water rights at common law are riparian and littoral rights. Historically, under Florida law, riparian rights are rights to use water that technically apply to owners of land abutting non-tidal or navigable river waters while littoral rights are those that refer to land abutting navigable ocean, sea or lake waters. Generally, the terms riparian and littoral rights are now used interchangeably to cover the following rights:

• the right to the view of the water
• the right to use the water
• the right to access the water
• the right to land accretion and reliction

A landowner’s water rights are also subject to what is known as the public trust doctrine, which generally recognizes the public’s right to natural resources. This doctrine is also contained in the Florida Constitution, which generally provides that title to lands under navigable waters is held by the state in trust for its citizens.

Water Rights Disputes in Florida, An Example: BB Inlet Property, LLC v. 920 N. Stanley Partners, LLC

In BB Inlet Property, LLC v. 920 N. Stanley Partners, LLC, the appellate court was called upon to resolve a dispute between property owners (an upland property owner and a submerged property owner) over one owner’s right to retain a dock. The dock was located on privately-owned submerged land and was the only means for an upland property owner’s access to the Intracoastal waterway (which was the nearest navigable waterway). The lower court found that there was no issue of any material fact and entered summary judgment for the upland property owner. On appeal, the submerged landowner argued that the installation of the dock and its use violated riparian rights, the dock was originally built without the submerged landowner’s consent, the dock encroached on the submerged landowner’s property rights, the dock was not constructed in accordance with applicable regulations. The appeals court affirmed the lower court’s decision, finding that that the dock was built in compliance with applicable regulations, and that the upland property owner was entitled to judgment as a matter of law.

Contact Us Today for More Information 

Buying, renting or owning property that includes water rights involves special considerations for landowners and tenants. As the BB Inlet Property, LLC v. 920 N. Stanley Partners, LLC illustrates, disputes between property owners and litigation over water rights and waterways can occur. For real estate transactions that involve water rights in Fort Lauderdale, it is advisable to speak with an experienced real estate lawyer. The experienced Fort Lauderdale real estate lawyers at Sweeney Law, P.A. also represent property owners, landlords and tenants, and HOA and condominium associations in the full range of real estate litigation.

Resource:

scholar.google.com/scholar_case?case=5599984869627245280&q=trespass&hl=en&as_sdt=4,10&as_ylo=2020

https://www.sweeneylawpa.com/condominium-transfer-fees-in-florida/

For any Florida condominium buyer, one fixed cost that can be anticipated is a transfer fee. In general, transfer fees are most commonly thought of as amounts charged each time a condominium unit is sold, although they may also apply to Florida leases and subleases. While often not significant in terms of amount, at least within the context of the many costs associated with a condominium purchase, Florida condominium buyers (and renters) should nevertheless be aware of the limits imposed on transfer fees under state law.

Limitation on Florida Transfer Fees 

Florida law specifically provides that a transfer fee may not be charged by a condominium association on any transfer (including a sale, mortgage, lease or sublease) of a condominium unit unless:

• the association is required to approve the transfer, and
• the fee is provided in the condominium’s declaration, articles or bylaws.

Importantly, the amount of the fee can be designated by the condominium in advance, but cannot exceed $100. The fee is charged per applicant, and a husband and wife or parent and dependent child are together considered as one applicant.

There are exceptions and clarifications under state law regarding transfer fees when it comes to lessees and leases. Under the Florida condominium law:

• where a lease or sublease is involved, no transfer charge is allowed if the lease or sublease is a renewal or a sublease with the same tenant or sublessee.
• a condominium association can still require lessees to pay security deposits, if this is authorized its declaration or bylaws

Inflated Condominium Transfer Fees 

Allegations that a Brickell condominium association charged fees in excess of the amount allowed by law made the news last fall.  A lawsuit filed against the condominium association claimed that the association overcharged future residents by imposing two excessive fees: a screening and application fee of $150 and a $200 move in and move out fee, according to the Miami Herald. In that case, a class action lawsuit was filed, and the condominium association agreed to settle the lawsuit and pay up to $300,000.

Complaints against condominium overcharges for transfer fees are not new. In 2016, nearly half of the application fees for condominiums exceeded $100 in Miami-Dade County, according to the Miami Herald. At that time, Miami, Miami Beach, and Aventura were among the cities with excessive fees and the most condominium units listed for sale. In Fort Lauderdale, 12 percent of the condominium listings for sale at that time were charging excessive fees.

Buying a new Florida condominium residence is an exciting venture but one that comes with both rights and responsibilities. For a full understanding of these rights and responsibilities, along with the fees that are associated with the purchase of a condominium in South Florida, contact Sweeney Law to speak with a knowledgeable and experienced Fort Lauderdale real estate lawyer.

Resources:

miamiherald.com/news/business/real-estate-news/article81430117.html

miamiherald.com/news/business/real-estate-news/article234887852.html

https://www.sweeneylawpa.com/specific-performance-for-contracts-concerning-the-sale-of-florida-real-property/

For Florida purposes, specific performance pursues the specific enforcement of transferring ownership of the subject property as contracted for in the underlying sales contract.  This remedy is generally available to both buyers and the sellers. However, specific performance will only be available if the contract terms are unambiguous, include the obligations of the parties, the time for performance under the contract, the method of performance, and the legal description of the subject property involved.  Brown v. Dorby, 311 So.2d 159 (Fla. 2d DCA 1075); See Also Lasseter v. Dauer, 211 So.2d 584 (Fla. 3d DCA 1968). The complaint or counterclaim in which specific performance is sought must also communicate these clear and definite terms, distinguish them in the contract, and plainly describe the property.  Cox v. La Pota, 76 So.2d 662 (Fla. 1955). All of this makes the specific performance remedy difficult to enforce when the agreement to sell real estate is an oral contract. Though not entirely impossible.  Florida courts have held that specific performance may be granted under an oral contract but only in the narrow circumstance where the buyer is already in custody of the property at the start of the buyer’s action against the seller.  Avery v. Marine Bank & Trust Co., 216 So.2d 251 (Fla. 2d DCA 1968).  Yet, even when the buyer is in possession, said possession alone will not be enough to enforce specific performance.  There must also be “other pertinent factors” besides the buyer merely possessing the subject property.  See Tate v. Jones, 16 Fla. 216 (1877) (explaining that the buyer also paid part of the purchase price); Taylor v. Mathews, 53 Fla. 776 (1907) (clarifying that the buyer also made substantial improvements to the property).

It is important to keep in mind that specific performance is discretionary with the courts.  It is not a matter of right to either party.  Thus, the court may deny this remedy even when the terms of the contract are unambiguous, and the remedy is available.  Mann v. Thompson, 100 So.2d 634 (Fla. 1^st DCA 1958). Additionally, if there’s another remedy that will be adequate for that seller, then the judge may decline to grant specific performance. Under Florida law, forcing that buyer to perform can only be done by a court if there is no other “adequate remedy at law.” If the judge tries to order specific performance and the buyer can establish that other remedies were available (i.e. monetary damages), then that trial court judge will be reversed on appeal unless specific performance is an express remedy granted in the purchase contract.

If the buyer breaches the contract by walking away, the seller can sue for specific performance by asking the court to compel the transfer of the subject property to the buyer. Then, if specific performance is awarded, the seller can then recover from the buyer the full purchase price as contemplated in the contact plus any incidental damages.  Clements v. Leonard, 70 So.2d 840 (Fla. 1954).  As mentioned above, the remedy of specific performance is also available to a buyer against a seller who has breached.  Though, this remedy is only available to the buyer if the seller does indeed hold proper title to the property to convey. Miller v. Rolfe, 97 So.2d 132 (Fla. 1^st DCA 1957).  If the seller feigned his or her ownership and never actually held title to the property, then they would not have title to convey through the buyer’s action for specific performance.  In that situation, the buyer’s only remedy would be to seek money damages from the seller.  Id.

Sweeney Law, P.A. has represented buyers and sellers in various specific performance matters concerning all types of real estate throughout Florida.

Sweeney Law, P.A. Regularly Prosecutes and Defends

Florida Real Estate Litigation Matters

Brendan A. Sweeney, Esq., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, prosecutes and defends real estate litigation matters throughout Florida. Brendan A. Sweeney, Esq., is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 2019, Florida Legal Elite in 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any Florida real estate litigation questions and/or issues then contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights. www.sweeneylawpa.com.

An action for partition must be filed in the county where the land is located, it does not matter where the joint property owners are located. In order to be able to have standing to assert a partition action the party must include “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.” § 64.031, Fla. Stat. A complaint for partition must show that title is in the plaintiff and that plaintiff holds possession or a right to immediate possession of the land. It must set forth to the plaintiff’s best knowledge and belief the names, places of residence, and interests held by the defendants against whom partition is sought. § 64.041, Fla. Stat.

Once an action for partition has been filed the court will ultimately decide whether to divide up the property and give each joint property owner a portion of it or whether the subject property should be sold. When the court divides up the property and gives title to a specified share of the property it is called partition in kind. However, think of this from a practical perspective, not all properties can be so easily divided, such as condominiums and homes, partitions in kind are most commonly utilized with large tracts of land that are easily divided up. Additionally, if one joint property owner improves the land, such as paying the yearly property taxes, paid the mortgages on the property, or maintained the property, then the court can order that they receive a larger percentage of the property or a credit for the improvements rendered.

If the court determines that selling the property is appropriate then a sale will be conducted. Pursuant to Florida law there are there different procedures available to the court for conducting a partition sale: (i) a judicial sale by public auction under § 64.071, Fla. Stat.; (ii) a sale conducted by the clerk or a magistrate under § 64.061, Fla. Stat.; or (iii) a sale based on the stipulation of the parties in accordance with  Carlsen v. Carlsen, 346 So. 2d. 132 (Fla. 2D DCA 1977); Marks v. Stein, 160 So. 3d 502 (Fla. 2D DCA 2015). Most trial judges will afford the parties the opportunity to negotiate a private sale, either to a joint property owner or to a third party. However, in order to have a private sale conducted pursuant to Carlsen, the following two requirements must be met: (i) the judgment must fix some reasonable deadline for such arrangements to be completed, any private sale is subject to approval by the court; and (ii) the judgment must provide that if disposition of the subject property is not amicably resolved within a specified reasonable period of time, judicial sale of the property must take place in accordance with Chapter 64, Florida Statutes.

The proceeds of the partition sale will be used to satisfy any mortgages, liens, and taxes, and will then be will be distributed amongst the joint property owners. The distribution will take into account any parties that made any improvements upon the property, such as making mortgage payments or paying property taxes. Additionally, attorney’s fees in Florida partition actions are specifically provided for in § 64.081, Fla. Stat., which provides for attorney’s fees commensurate with the level of service and benefits rendered to the cause. Attorney’s fees incurred in ancillary post partition judgment actions, such as probate proceedings, may also be recoverable pursuant to this statute.

Sweeney Law, P.A. has represented lenders, mortgage servicers, investors, and owners in various partition matters concerning all types of real estate throughout Florida.

Sweeney Law, P.A. Regularly Prosecutes and Defends

Florida Real Estate Litigation Matters

Brendan A. Sweeney, Esq., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, prosecutes and defends real estate litigation matters throughout Florida. Brendan A. Sweeney, Esq., is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 2019, Florida Legal Elite in 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any Florida real estate litigation questions and/or issues then contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights. www.sweeneylawpa.com.