Partition Action Complaint - Florida

COMPLAINT FOR PARTITION OF REAL PROPERTY AND NOTICE OF LIS PENDENS — FLORIDA

TABLE OF CONTENTS

1. Caption
2. Nature of the Action
3. Parties
4. Jurisdiction and Venue
5. The Subject Property
6. Cotenancy and Fractional Interests (§ 64.041)
7. Source and Nature of Title
8. Count I — Partition (Fla. Stat. ch. 64, Part I)
9. Count II — Uniform Partition of Heirs' Property Act (§§ 64.201-64.214)
10. Accounting and Equitable Adjustments
11. Prayer for Relief
12. Verification
13. Signature and Service Blocks
14. Certificate of Service
15. Notice of Lis Pendens (Fla. Stat. § 48.23)
16. Florida Practice Notes
17. Sources and References

1. CAPTION

IN THE CIRCUIT COURT OF THE [____] JUDICIAL CIRCUIT

IN AND FOR [________________________________] COUNTY, FLORIDA

CIVIL DIVISION

CASE NO. [________________________________]

VERIFIED COMPLAINT FOR PARTITION OF REAL PROPERTY

Plaintiff, [PLAINTIFF NAME], sues Defendants and alleges:

2. NATURE OF THE ACTION

2.1. This is an action in chancery for the partition of real property pursuant to Chapter 64, Florida Statutes. Plaintiff and one or more Defendants own the Property described herein as [tenants in common / joint tenants / coparceners].

2.2. Plaintiff seeks partition of the Property among the parties according to their respective interests or, if the Property is nondivisible, a sale of the Property and a division of the proceeds, together with an accounting among the cotenants. Where the Property is "heirs property" within the meaning of Fla. Stat. § 64.202, the Uniform Partition of Heirs' Property Act (Part II) governs.

2.3. The amount in controversy exceeds $50,000, exclusive of interest, costs, and attorneys' fees, conferring jurisdiction on this Circuit Court.

3. PARTIES

3.1. Plaintiff [PLAINTIFF NAME] is sui juris and a resident of [COUNTY] County, Florida, residing at [ADDRESS], and owns an undivided [____] interest in the Property.

3.2. Defendant [DEFENDANT 1 NAME] is, upon information and belief, sui juris, residing at [ADDRESS], [CITY, STATE, ZIP], and owns an undivided [____] interest in the Property.

3.3. Defendant [DEFENDANT 2 NAME] is, upon information and belief, a [corporation / limited liability company / trust] organized under the laws of [STATE], with its principal place of business at [ADDRESS] and a registered agent at [REGISTERED AGENT ADDRESS], and owns or claims an interest in the Property.

3.4. Defendant [MORTGAGEE / LIENHOLDER NAME] holds, or appears of record to hold, a [mortgage / judgment lien / construction lien / tax lien] encumbering the Property or an undivided interest therein, recorded at Official Records Book [____], Page [____], or Instrument No. [____________________], Public Records of [COUNTY] County, Florida, and is joined as a person interested in the lands pursuant to Fla. Stat. § 64.031.

3.5. The Defendants designated as "All Unknown Parties Claiming Any Right, Title, or Interest in the Property Described Herein" are persons whose names, residences, or interests are unknown to Plaintiff after diligent search and inquiry. Pursuant to Fla. Stat. § 64.041, where the name of any owner or claimant is unknown, the action may proceed as though such unknown persons were named.

4. JURISDICTION AND VENUE

4.1. This Court has subject-matter jurisdiction because all actions for partition are in chancery. Fla. Stat. § 64.011.

4.2. Venue is proper in this Court pursuant to Fla. Stat. § 64.022 because the lands that are the subject of this action, or a part thereof, lie within [COUNTY] County, Florida.

5. THE SUBJECT PROPERTY

5.1. This action concerns the real property commonly known as [STREET ADDRESS], [CITY], [COUNTY] County, Florida [ZIP], identified by Folio / Parcel No. [____________________] (the "Property").

5.2. The Property is legally described as:

[INSERT FULL LEGAL DESCRIPTION — e.g., Lot ___, Block ___, of [SUBDIVISION NAME], according to the Plat thereof recorded in Plat Book ___, Page ___, of the Public Records of [COUNTY] County, Florida; or full metes-and-bounds description]

5.3. A true and correct copy of the deed(s) vesting title in the cotenants is attached as Exhibit "A" pursuant to Fla. R. Civ. P. 1.130(a).

5.4. ☐ The Property is improved by a [single-family residence / multi-unit dwelling / vacant land / agricultural land / commercial building].

6. COTENANCY AND FRACTIONAL INTERESTS (§ 64.041)

6.1. Plaintiff and the Defendant owners hold title to the Property as [tenants in common / joint tenants / coparceners], with the following respective interests (quantity held by each):

6.2. The interests of the cotenants together constitute the entire fee simple in the Property. There is no agreement binding all cotenants that governs the partition of the Property.

7. SOURCE AND NATURE OF TITLE

7.1. The cotenants acquired their respective interests in the Property by [deed / devise under the will of [DECEDENT] / intestate succession / order of distribution in Probate Case No. [____]], as appears in the Public Records of [COUNTY] County, Florida.

7.2. ☐ One or more cotenants acquired title from a relative, [RELATIVE/DECEDENT NAME], and the Property is or may be "heirs property" within the meaning of Fla. Stat. § 64.202, in which event the Uniform Partition of Heirs' Property Act (Count II) governs.

8. COUNT I — PARTITION (Fla. Stat. ch. 64, Part I)

8.1. Plaintiff realleges and incorporates paragraphs 1 through 7.2 above.

8.2. As a [tenant in common / joint tenant / coparcener] holding an undivided interest in the Property, Plaintiff is entitled to maintain this action for partition against the cotenants and other interested parties pursuant to Fla. Stat. § 64.031.

8.3. This Complaint alleges the description of the lands, the names and residences of the owners and persons interested, and the quantity of interest held by each, as required by Fla. Stat. § 64.041.

8.4. Plaintiff is entitled to a judgment of partition pursuant to Fla. Stat. § 64.051 adjudicating the rights and interests of the parties and ordering partition.

8.5. Partition in kind. ☐ The Property can be divided among the cotenants according to their respective interests, and Plaintiff requests that the Court appoint three commissioners pursuant to Fla. Stat. § 64.061 to make the partition in kind, with owelty as necessary to equalize the shares.

8.6. Sale where nondivisible. ☐ The Property is so situated that partition cannot be made without prejudice to the owners, in that [the Property is a single-family residence / a single indivisible parcel / would be materially reduced in value if divided / [other reason]]. Plaintiff therefore requests that the Court order the Property sold pursuant to Fla. Stat. § 64.071 and the net proceeds distributed among the parties according to their respective interests as adjusted by the accounting.

9. COUNT II — UNIFORM PARTITION OF HEIRS' PROPERTY ACT (§§ 64.201-64.214)

9.1. Plaintiff realleges and incorporates paragraphs 1 through 7.2 above.

9.2. The Property is "heirs property" within the meaning of Fla. Stat. § 64.202 because: (a) there is no agreement in a record binding all cotenants that governs partition of the Property; (b) one or more cotenants acquired title from a relative, [RELATIVE/DECEDENT NAME]; and (c) [20% or more of the interests are held by cotenants who are relatives / a cotenant who acquired title from a relative resides in the Property].

9.3. Because the Property is heirs property, the Uniform Partition of Heirs' Property Act, Fla. Stat. §§ 64.201-64.214, governs this action. Plaintiff requests that the Court:

• ☐ Determination of value (§ 64.206). Order a determination of the fair market value of the Property by independent appraisal, by agreement of the cotenants, or after an evidentiary hearing;
• ☐ Cotenant buyout (§ 64.207). Afford the cotenants who did not request partition by sale the right to buy out the interest of any cotenant requesting sale, at the value-based price and within the statutory time;
• ☐ Partition alternatives; in kind preferred (§§ 64.208, 64.209). If no buyout is completed, order partition in kind unless the Court finds that partition in kind would result in great prejudice to the cotenants as a group, applying the factors in § 64.209; and
• ☐ Open-market sale (§ 64.210). If partition by sale is ordered, direct that the Property be offered for sale on the open market at a price not lower than the court-determined value, in a commercially reasonable manner and for a reasonable time, with the final division of proceeds adjusted to account for the parties' contributions.

10. ACCOUNTING AND EQUITABLE ADJUSTMENTS

10.1. Plaintiff realleges and incorporates paragraphs 1 through 9.3 above.

10.2. In connection with the partition, the Court should take an accounting and make equitable adjustments among the cotenants. Plaintiff has paid more than Plaintiff's proportionate share of the costs of the Property and is entitled to credit and contribution for:

• ☐ Real-property taxes and assessments paid: $[__________] (see Fla. Stat. § 64.081 re taxes);
• ☐ Mortgage principal and interest payments: $[__________];
• ☐ Hazard and liability insurance premiums: $[__________];
• ☐ Necessary repairs and maintenance: $[__________];
• ☐ Capital improvements enhancing the value of the Property: $[__________];
• ☐ Other: [________________________________] — $[__________].

10.3. Plaintiff is entitled to a charge against the share of any cotenant who has been in sole possession of the Property and has received the rents, profits, or rental value thereof to the exclusion of Plaintiff (ouster), in the amount of $[__________] or as proven.

10.4. Where partition in kind is ordered and the allotted parcels are unequal in value, Plaintiff requests an award of owelty to equalize the division.

10.5. The foregoing adjustments should be charged against or credited to the respective shares of the parties in the allotment of parcels or in the distribution of sale proceeds.

11. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court enter judgment as follows:

A. ☐ Adjudicating the respective rights and interests of the parties in the Property and ordering partition pursuant to Fla. Stat. § 64.051;

B. ☐ Appointing three commissioners (or a special magistrate) pursuant to Fla. Stat. § 64.061 to make partition of the Property in kind, with owelty as necessary;

C. ☐ In the alternative, ordering the Property sold as nondivisible pursuant to Fla. Stat. § 64.071, and the net proceeds distributed among the parties according to their respective interests as adjusted by the accounting;

D. ☐ Where the Property is heirs property, applying the determination-of-value, cotenant-buyout, partition-in-kind, and open-market-sale procedures of the Uniform Partition of Heirs' Property Act, Fla. Stat. §§ 64.201-64.214;

E. ☐ Taking an accounting among the cotenants and awarding Plaintiff credit, contribution, and offset for taxes, mortgage payments, insurance, repairs, improvements, and the rents/rental value of any property held in ouster;

F. ☐ Directing that all liens and encumbrances attach to the proceeds of any sale in their respective priorities;

G. ☐ Apportioning the costs of this action, including commissioners' fees, the costs of any sale, taxes, and reasonable attorneys' fees, among the parties in proportion to their interests pursuant to Fla. Stat. § 64.081 (and § 64.211 where the Heirs' Property Act applies); and

H. ☐ Granting such other and further relief as the Court deems just and proper.

12. VERIFICATION

STATE OF FLORIDA )
                  ) ss.:
COUNTY OF [__________________] )

BEFORE ME, the undersigned authority, personally appeared [PLAINTIFF NAME], who being by me first duly sworn, deposes and says:

"I am the Plaintiff in the above-styled cause. I have read the foregoing Verified Complaint for Partition of Real Property and the matters therein stated are true and correct to the best of my knowledge and belief, except as to those matters stated on information and belief, which I believe to be true."

[________________________________]
[PLAINTIFF NAME]

Sworn to (or affirmed) and subscribed before me by means of ☐ physical presence or ☐ online notarization, this [____] day of [________], [______], by [PLAINTIFF NAME], who is personally known to me or who has produced [____________________] as identification.

[________________________________]
Notary Public, State of Florida
Commission No.: [____________]
My Commission Expires: [__/__/____]

13. SIGNATURE AND SERVICE BLOCKS

DATED: [__/__/____]

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], Florida Bar No. [____________]

[FIRM ADDRESS / PHONE / DESIGNATED E-MAIL]

Counsel for Plaintiff

14. CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on [__/__/____], a true and correct copy of the foregoing was ☐ filed and served through the Florida Courts E-Filing Portal; ☐ served by U.S. Mail, postage prepaid; ☐ served by formal process pursuant to Chapter 48, Florida Statutes; ☐ served by publication pursuant to Chapter 49, Florida Statutes, upon the following:

[NAME / ADDRESS / E-MAIL OF EACH PARTY OR COUNSEL SERVED]

[________________________________]
[ATTORNEY NAME], Florida Bar No. [____________]

15. NOTICE OF LIS PENDENS (Fla. Stat. § 48.23)

IN THE CIRCUIT COURT OF THE [____] JUDICIAL CIRCUIT
IN AND FOR [________________________________] COUNTY, FLORIDA
CIVIL DIVISION

CASE NO. [________________________________]

[PLAINTIFF NAME], Plaintiff, v. [DEFENDANT NAME], et al., Defendants.

NOTICE OF LIS PENDENS

TO THE DEFENDANTS AND ALL OTHER PERSONS WHOM IT MAY CONCERN:

YOU ARE NOTIFIED of the institution of this action by the above-named Plaintiff against the above-named Defendants seeking partition of the following real property in [________________] County, Florida:

Common Address: [________________________________]

Parcel / Folio No.: [________________________________]

Legal Description: [INSERT FULL LEGAL DESCRIPTION]

1. The name of the Court in which the action was instituted: Circuit Court of the [____] Judicial Circuit in and for [________________] County, Florida.

2. The names of the parties: as set forth in the caption above.

3. The date of the institution of the action: [__/__/____].

4. The case number: [________________________________].

5. The relief sought against the Property: a judgment of partition of the Property, or a sale and division of the proceeds, with an accounting.

DATED this [____] day of [________], [______].

[________________________________]
[ATTORNEY NAME], Florida Bar No. [____________]
Attorney for Plaintiff
[ADDRESS / PHONE / E-MAIL]

FILE WITH: Clerk of the Circuit Court and record in the Official Records of [________________] County, Florida.

16. FLORIDA PRACTICE NOTES

• Governing chapter. Partition is governed by Chapter 64, Florida Statutes. Part I (General Provisions, §§ 64.011-64.091) applies to all partition actions; Part II (§§ 64.201-64.214) is the Uniform Partition of Heirs' Property Act.
• In chancery; commissioners. All partition actions are in chancery (§ 64.011). Upon a judgment of partition, the court appoints three suitable persons as commissioners to make the partition (§ 64.061); any party may file objections to their report within 10 days after service.
• Sale where nondivisible. Where the Property cannot be partitioned in kind without prejudice, the court orders a sale under § 64.071. Many single-family and single-parcel properties are sold rather than divided.
• UPHPA — adopted (eff. July 2020). Florida adopted the Uniform Partition of Heirs' Property Act as Chapter 64, Part II, effective July 2020. Where the Property is "heirs property" (§ 64.202 — tenancy in common, no binding partition agreement, at least one cotenant acquired from a relative, and the 20% / residence thresholds met), the Act requires a court determination of value (§ 64.206), affords cotenants a right to buy out the party seeking sale (§ 64.207), prefers partition in kind (§§ 64.208-64.209), and, if sale is ordered, requires an open-market sale at not less than the court-determined value (§ 64.210). Final division of proceeds is adjusted for the parties' financial contributions (§ 64.206(7)).
• Complaint requirements. Under § 64.041, the complaint must allege the description of the lands, the names and residences of the owners/interested persons, the quantity held by each, and any unknown names/residences/interests.
• Costs, taxes, attorneys' fees. Section 64.081 governs costs, taxes, and attorneys' fees in partition; fees are generally apportioned among the parties in proportion to their interests where the partition benefits all. In heirs-property actions, see also § 64.211.
• Lis pendens. Record a notice of lis pendens under Fla. Stat. § 48.23 in the Official Records of the county where the Property lies. Mandatory contents appear in § 48.23(1)(b).
• Necessary parties / unknowns. Join all cotenants, lienholders, mortgagees, and other interested persons (§ 64.031). Unknown or nonresident parties may be served by publication under Chapter 49.

17. SOURCES AND REFERENCES

• Fla. Stat. Chapter 64, Part I (§§ 64.011-64.091) — Partition, General Provisions — https://www.leg.state.fl.us/statutes/
• Fla. Stat. Chapter 64, Part II (§§ 64.201-64.214) — Uniform Partition of Heirs' Property Act
• Fla. Stat. § 64.061 (Commissioners; special magistrate)
• Fla. Stat. § 64.071 (Sale where nondivisible)
• Fla. Stat. § 64.081 (Costs; taxes; attorneys' fees)
• Fla. Stat. § 64.202 (Definition of heirs property); § 64.206 (Determination of value); § 64.207 (Cotenant buyout); § 64.210 (Open-market sale)
• Fla. Stat. § 48.23 (Notice of lis pendens); Chapter 49 (Service by publication)
• Fla. R. Civ. P. 1.110, 1.130
• Uniform Law Commission — Uniform Partition of Heirs Property Act

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