Partitioning Real Property in Dissolution of Marriage Actions and Suits Between Unmarried Cotenants: Credits, Setoffs, Ouster, Division, and Sale
There are advantages and disadvantages of sharing ownership of real property. These partnerships can involve married adults, unmarried adults living together, and cotenants investing in jointly owned real property as a business enterprise. The partnership progresses smoothly for a while, and then friction and dissention sets in. After consulting with an attorney, the parties finally come to the realization that the partnership must end. They cannot agree on what to do with their real property, so the parties turn to the court. A suit to partition real property may be the only answer for unmarried adults,1 and a petition for dissolution of marriage will be necessary for married adults who have accumulated real and personal property.2 This article will discuss partition of real property in dissolutions of marriage, situations in which two or more unmarried cotenants live together in jointly owned real property, and when cotenants band their money and resources together and invest in jointly titled real property as a business activity.
Partition of real property is a severance of undivided and coexisting interests in real property. Under F.S. Ch. 64, a partition action may be brought by “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.”3 Partition is an option when two or more parties have a right to immediate possession of real property as tenants in common, joint tenants with right of survivorship, or life tenants.4 The policy behind a partition is to encourage trade and to pass title with a minimum of ill will and interference between joint owners.5 Partition suits can be pled in dissolution of marriage actions, but an estate by the entireties is not subject to partition until after the entry of a final judgment of dissolution of marriage (FJDM), when the ownership becomes a tenancy in common.6 When there is a dispute as to title or right to possession of real property, a suit to quiet title, ejectment, or adverse possession can be filed to determine the lawful owners and possessors.7
Location, Location, Location: Local vs. Transitory Actions
F.S. §64.022 provides that partition “shall be brought in any county where the lands or any part thereof lie….”8 There is a dispute among the appellate courts as to whether a court can compel the sale of real property located outside the court’s geographical boundaries or order a change in title. In local actions — proceedings against the property having a fixed location — the venue lies only in the county and state where the subject real property is located.9 Under this view, the appellate courts have held that a trial court in a FJDM or partition action cannot sell or transfer real property located outside the territorial boundary of the court.10 Where the action is personal or transitory — an action on a debt, contract, FJDM, or other suit relating to a person — a defendant has the right to be sued in the county of his or her residence or where the cause of action accrued.11 Under this view, a court has inherent jurisdiction to compel a sale of foreign real property located outside of the geographical boundary of the court as part of its power to create an equitable distribution plan in a FJDM. Gil v. Mendelson, 870 So. 2d 825 (Fla. 3d DCA 2003), held that the trial court could order the sale of Israeli real property, where the pleadings requested the trial court to take jurisdiction and equitably distribute all real and personal property of the parties.12
Calculating Proceeds of the Partition Sale
The general rule is that each cotenant is ultimately liable for his or her proportionate share of the obligations and expenses of real property. The rationale is that the equity of one cotenant should not be increased by expenditures of another cotenant.13 Upon partition, a cotenant paying more than his or her proportionate share is entitled to a credit from the proceeds of sale from the other cotenant’s proportionate share of the expenses. These guidelines are provided to help the parties and the court achieve compliance.
First, each party’s proportionate share must be determined by using each party’s percentage of ownership. In relationships outside of marriage, each cotenant can own the real property equally or disproportionately.14 In marriages, if the spouses own real property jointly, upon entry of a FJDM, it becomes a tenancy in common.15 If real property is in the name of one spouse and was purchased and paid for during the marriage through marital labor or with marital funds, it is marital property.16 The enhanced portion of nonmarital real property inherited or brought into the marriage and titled solely in the name of the owner spouse constitutes marital property.17 The court always begins with the premise that marital property should be equally divided, because equitable distribution is based on the premise of an equal partnership in marriage.18 However, the court has authority pursuant to F.S. §61.075 (1) to award one spouse more than 50 percent of marital property in a plan to equitably distribute the property.19
Second, the court must decide which “household expenses” are reimbursable. The most common household expenses necessary to preserve and maintain the real property include the mortgage (principal, income, taxes, and insurance), association fees, maintenance, replacement, and repairs that need to be paid in accordance with the proportionate share of the cotenants.20
Third, there must be a determination of the amount and percentage of expenses paid by one party that should be reimbursed from the nonpaying cotenant’s share. In dissolutions of marriage, the analysis begins upon separation or filing of the action, but in no event later than the entry of the FJDM.21 In a business or personal relationship outside of marriage, the analysis begins from the date of the original closing of the joint tenancy.22 If one cotenant pays for 100 percent of an obligation for which the joint owners are liable, he or she is entitled to have the other cotenant reimburse his or her proportionate share of the expenses.23 Where one cotenant makes a down payment on the purchase of real property, the cotenant not making a down payment is liable for 50 percent of the original down payment at a future sale.24 But where the FJDM awards one cotenant exclusive possession of the marital residence and directs the cotenant to pay the entire household expenses, the cotenant paying 100 percent of the household expenses is entitled to a 50 percent credit for amounts paid to preserve and maintain the property from the proceeds of sale from the other cotenant’s proportionate share of the expenses at a future partition and sale.25 Florida appellate courts have consistently reversed lower courts awarding a cotenant a 100 percent credit for reimbursable household expenses. The appellate courts have held that a cotenant paying 100 percent of these household expenses is entitled to a 50 percent credit from the proceeds of sale from the other cotenant’s proportionate share of the expenses.26
Fourth, the real property subject to partition must be given a fair market value. If the size of the real property is large or has many financial mechanisms, a value should be placed on the entirety of the land and each component, so that there is a determination of its rental value, productive value, and live-in value.27
Improvements on Real Property
Where a cotenant adds improvements over and above what is needed to preserve the property, the law refuses to make another cotenant pay for improvements made without his or her approval.28 To the extent that an improvement enhances the value of the real property, the cotenant paying for such improvement can obtain part of the proceeds attributable to the improvement in excess of the share otherwise due. This can be determined by getting an appraisal or valuation of the improvements that enhanced the real property’s value.29
Forms of Relief
Where the allegation and proof sought to be partitioned is indivisible and not subject to partition without prejudice to the other owners, a court must order a private or public sale. If a trial court fails to do so, the ruling will be reversed on appeal and a partition sale will be ordered in the absence of unusual circumstances.30
Where the real property is divisible without prejudice to the owners, a partition in kind, e.g., a division of real property is justified. Under these circumstances, the shares apportioned to the parties in partition do not have to be exactly equal in amount and value. In Schroeder v. Lawhon, 922 So. 2d 285 (Fla. 2d DCA 2006), the appellate court held that an unequal division of real property can be justified where one cotenant improved the real property without contribution from the other cotenant. The brother in the mid-1990s built a home encompassing 2,800 square feet with modern amenities and his own 2,400 square feet of a private garage. His sister resided in the older, family home, which was built in the mid-1950s. She did not participate in building or improving any of the subject real property, while her brother funded these improvements with his own money. The size of parcel one was 2.77 acres and it was allotted to the sister, whereas parcel two, which was 2.15 acres, containing substantially more river frontage, was allotted to the brother. The appellate court ruled that the party making the improvements should receive the benefit of the enhancement that was made to the value of the land, and it was equitable for the brother to receive a smaller but more valuable parcel than his sister upon partition.31
Where two cotenants own the land, the 50 percent credit that is owed to the cotenant paying 100 percent of the reimbursable household expenses will usually reduce the amount the other cotenant will receive upon partition and sale from his or her 50 percent net equity. But where the cotenant’s failure to pay the reimbursable household expenses exceeds the nonpaying cotenant’s 50 percent net equity and proportionate share of the sale proceeds, the court can award the entire real property to one cotenant.32 The following hypothetical illustrates how one party can eliminate the cotenant’s portion and receive the entirety of the real property without division or sale. If two unmarried people are 50 percent owners of real property and there is $350,000 in equity following its sale, each cotenant should receive $175,000. However, if the total amount of paid reimbursable household expenses over the years was $375,000, then each cotenant’s proportionate share of the expenses is $187,500. Cotenant A, who has not paid any of the household expenses, will be required to reimburse $187,500 to cotenant B, who paid 100 percent of these expenses. The first $175,000 will come out of the equity received at the time of the sale from cotenant A, and an additional $12,500 may have to be paid from some other resource owned by cotenant A. The amount owed by A could be forgiven if B elects to do so upon receipt of the entire real property. The partition court can rule that the partnership involved only the real property, and, therefore, there is no basis for a money damages award in favor of B. In sum, there is no equity that remains after accounting for the reimbursable household expenses paid by cotenant B; therefore, cotenant A will get nothing, and cotenant B will receive the entire real property and possibly a money judgment for $12,500 against A.
Setoffs and Credits in the Marital Residence and Jointly Titled Real Property
F.S. §61.077 sets forth criteria on entitlement to setoffs and credits upon sale of a marital residence in a FJDM. If the FJDM is silent on setoffs and credits, and it is not appealed, neither party can later ask for an award against the former spouse when the marital residence is partitioned and sold.33 This statute also requires a court to make findings of facts on entitlement to credits and setoffs upon sale of the marital residence for payments he or she will make post-FJDM, and if the trial court fails to make findings, it constitutes reversible error.34 F.S. §61.077 uses the words “credits” and “setoffs,” but it cannot be relied upon as authority to set off 50 percent of the fair rental value for a period of exclusive possession as against 50 percent of a cotenant’s payment of reimbursable household expenses of the marital home during the primary residential parent’s exclusive occupancy with the minor children.35 On the other hand, if neither party is granted exclusive occupancy of the residence by court order, a trial court can set off 50 percent of the fair rental value against a 50 percent credit of the reimbursable household expenses.36 Where a cotenant in possession vacates the premises and rents them to a tenant, the rent benefits all cotenants in proportion to their ownership, and accordingly 50 percent of the rent after expenses must be kept by the cotenant receiving the rent, while the other cotenant must receive 50 percent of the rent after expenses.37
If a cotenant in possession seeks contribution for amounts expended toward preservation of real property, it can be argued that 50 percent of the reimbursable household expenses paid by the cotenant in possession can be set off by 50 percent of the fair rental value of the property by the out-of-possession cotenant. In Barrow v. Barrow, 527 So. 2d 1373 (Fla.1988), a FJDM made the husband and wife tenants in common. The former husband occupied the real property after the FJDM, even though the decree was silent as to who was entitled to its possession and the date of any future sale. Later, the former wife petitioned for partition. The former husband made a claim for a 50 percent credit of the amounts expended to preserve and improve the property. The Florida Supreme Court held that when a cotenant in possession seeks a 50 percent contribution for amounts expended in the preservation of the property, the credit claim may be set off by a out-of-possession cotenant by 50 percent of the fair rental value if the cotenant in possession holds the real property adversely against the out-of-possession cotenant or as a result of ouster.38
In contrast to Barrow, some appellate courts have held that a trial court acts within its sound discretion in refusing to set off 50 percent of the fair rental value of the real property when a 50 percent credit claim is made. These decisions hold that the paying cotenant should be credited for 50 percent of the reimbursable household expenses from the other cotenant’s household expenses that he or she did not pay upon partition and sale. These decisions in FJDM cases turn on what the courts believe are equitable after considering the comparable financial resources of the parties and any duty of child support and separate maintenance owed by one spouse to the other.39 One example is Cintron v. King, 961 So. 2d 1010 (Fla. 4th DCA 2007), in which the wife vacated the marital residence during the FJDM proceeding and left the husband in possession. He paid the normal household expenses without help from his wife. The appellate court held that the husband was entitled to a 50 percent credit of the reimbursable household expenses he paid from separation to the date of sale without considering the matter of a 50 percent fair rental value setoff.
Both of these legal doctrines are entrenched in Florida jurisprudence, and the practitioner is encouraged to raise the particular issue that is beneficial to his or her client. Proof must be presented at trial showing which reimbursable household expenses were paid and the amount. Proof of the fair rental value of the real property must also be presented. Upon failure to raise the issues as applied to the facts and to present proof at trial, the appellate courts have deemed the issue not preserved on appeal and, therefore, waived.40
Liens of a Cotenant in a Partition Action
In a FJDM, the court can make the spouses equally or disproportionately liable for their marital debts and liabilities no matter which spouse incurred the marital debt during the marriage.41 In other actions, liens and certified copies of judgments recorded on a cotenant’s undivided interest will attach to the cotenant’s share of the proceeds of a partition sale, so long as the real property is not homestead.42 If the cotenant’s share is homestead, it will be exempt from the attachment of creditors.43 An exception is a cotenant’s federal tax lien that will attach to the entirety of a cotenant’s homestead and nonhomestead real property share in a partition sale.44 The effect of a sale on nonhomestead real property will subject the cotenant’s share to all of his or her outstanding liens and judgments and reduce the net equity received by the cotenant.45
Partition is a matter of right to those holding undivided interests in real property.46 Litigants should be wary of expecting a court to refuse to partition real property, except in unusual circumstances. Situations where courts have denied partition of real property or set aside an agreement not to bar partition are discussed below.
When the facts show manifest injustice, fraud, and oppression to the weaker party, appellate courts can set aside an agreement to partition or not to partition real property. In the leading case of Condrey v. Condrey, 92 So. 2d 423 (Fla. 1957), an elderly, physically frail couple unable to support themselves created a tenancy in common with their son and daughter-in-law, who agreed to live with them and contribute to the parents’ living expenses. In affirming the trial court’s denial of the partition claim, the Florida Supreme Court held that equity required that the partition claim be denied on account of their own agreement not to partition during the parents’ life.47
When a party to an agreement can show that the other party has made it inequitable or unduly burdensome for the complaining party to live by a contract, an agreement not to partition can be set aside. In Forehand v. Peacock, 77 So. 2d 625 (Fla. 1955), the parties agreed to allow a cotenant’s mother to live on her property rent free for life when the property vested title to her daughter and son-in-law as survivors. Soon thereafter, the daughter and her husband demanded rent, argued, and made life miserable for her to live on the property, forcing her to leave the property. The Supreme Court held that a joint tenant who orally agreed to waive her right to partition during her life could seek to dissolve her agreement not to partition when the cotenant breached an agreement to allow her quiet enjoyment during her life.48
An absolute restraint on alienation is inconsistent with the right of ownership and is, therefore, invalid, whereas postponement of the right to partition for a limited duration when necessary to accomplish a plan is permissible. In Haddad v. Hester, 964 So. 2d 707 (Fla. 3d DCA 2007), the spouses entered into a marital settlement agreement (MSA) that incorporated their wish to keep certain Islamorada real property for life and pass it to their children upon the parents’ death. The appellate court held that the parties waived partition by virtue of their express written agreement that would apply during the parents’ lives. In Vinson v. Johnson, 931 So. 2d 245 (Fla. 1st DCA 2006), a testator’s will prohibited a partition sale of real estate, except when all nine heirs agreed. The appellate court held that the will was an unlawful restraint on alienation of real property, because it prohibited them from normal incidents of property ownership, including the right to sell or dispose of the property during their entire lifetimes. Partition under these circumstances was permitted regardless of the minority owners’ wishes opposing partition.49
A FJDM, whether decided by the court or pursuant to a MSA, is conclusive as to all matters raised or that could have been raised in a FJDM proceeding. This is so in a partition action, where the FJDM determines how the marital real property will be divided and distributed. Even if a trial court later finds that it is in the best interest of the parties to partition real property, in the absence of an agreement by both parties, there is no requirement to partition the real property if the FJDM already determined how the real property will be divided and distributed.50
A former out-of-possession spouse has no standing to file a partition action as to jointly owned real property, where one spouse is awarded exclusive possession of the property in the FJDM. Under such circumstances, the former spouse requesting partition has no right to immediate possession. It is when there is an expiration or termination of the former spouse’s grant of exclusive possession by virtue of remarriage or emancipation of minor children that an out-of-possession ex-spouse has a right to immediate possession and to file a partition action.51
This article has discussed issues that must be considered in any suit to partition real property in a FJDM and those involving unmarried cotenants. Although each partition action is different, the concept of partition is not difficult. However, the appellate court decisions abound with reversals of lower court final judgments. When a cotenant in possession seeks contribution for amounts spent on reimbursable household expenses, the appellate courts are at variance as to whether 50 percent of the fair rental value can be set off against a credit of 50 percent of the reimbursable household expenses, except when a spouse receives exclusive occupancy of the residence.
Historically, the marital residence was a shelter for the residential parent and the minor children, but it is no longer subordinate to the spouses’ business interests and retirement plans in a FJDM. The real estate boom has brought real estate to the forefront of the marital estate. Ownership of a marital residence and other real property, and amounts expended for their maintenance, can be a significant part of the marital estate. These factors require the parties and the court to deal with its division and distribution after considering the amounts spent to preserve the real property.
The marital residence and other real property can be valued at hundreds of thousands of dollars to millions of dollars due to their sizeable appreciation.52 The dollar amount of reimbursable expenses can be substantial and considerable.53 The court in a final judgment must carefully ensure that each cotenant receives his or her share of the tenancy in accordance with their respective interest and any credits and setoffs the parties are entitled to receive.
1 Fla. Stat. Ch. 64 (2006).
2 Fla. Stat. Ch. 61 (2006). There are many issues in a final judgment of dissolution of marriage (FJDM), including but not limited to claims for alimony, primary and secondary residence of the minor children, child support, payment of debts and liabilities, equitable distribution, enhancement of nonmarital assets, attorneys’ fees, among others. This article discusses partition of real property in FJDM and those involving unmarried cotenants.
3 Fla. Stat. §64.022 (2006). In a timeshare unit, however, partition will not lie, unless it is specifically provided for in the contract according to Fla. Stat. §721.22 (commonly called the Florida Vacation and Timesharing Act).
5 Fla. Stat. §64.022 (2006); Williams v. Ricou, 196 So. 667 (Fla. 1940).
6 See Sudholt v. Sudholt, 389 So. 2d 301 (Fla. 5th D.C.A. 1980).
7 See McGriff v. Leonard, 93 So. 179 (Fla. 1922); McIntyre v. Parker, 82 So. 253 (Fla. 1919). It is permissible to file an action to quiet title, ejectment, and adverse possession and consolidate them with a partition action to establish the rightful owners of real property and then determine what should be done after title is determined. See Terra Ceta Estates, et al. v. Taylor, 67 So. 169 (Fla. 1914).
8 Fla. Stat. §64.022 (2006).
9 Polkowski v. Polkowski, 854 So. 2d 286 (Fla. 4th D.C.A. 2003); Denison v. Denison, 658 So. 2d 581 (Fla. 4th D.C.A. 1995); Harvey v. Mattes, 484 So. 2d 1382 (Fla. 5th D.C.A. 1986).
11 Goedmakers v. Goedmakers, 520 So. 2d 575 (Fla. 1988).
12 The reasoning in Gil v. Mendelson, 870 So. 2d 825 (Fla. 3d D.C.A. 2003), is that title and sale of the real property other than the marital residence relates to the dissolution of marriage action, which is a personal action of the parties, when the parties ask for equitable distribution. In asking the court to equitably distribute all of the parties properly located in many different places, the parties have submitted themselves to the jurisdiction of the court. Further, the Israeli real property was inextricably intertwined in the FJDM; therefore, it is difficult to separate the real property portion of the case from the equitable distribution portion. The appellate court also decided that entitlement to credits could be considered and applied against the former spouse’s one-half interest in the real property upon sale.
13 Costa v. Costa, 951 So. 2d 924 (Fla. 4th D.C.A. 2007); McCarthy v. McCarthy, 922 So. 2d 223 (Fla. 3d D.C.A. 2005); Biondo v. Powers, 743 So. 2d 161 (Fla. 4th D.C.A. 1999).
15 Sudholt v. Sudholt, 389 So. 2d 301 (Fla. 5th D.C.A. 1980).
16 Fla. Stat. §61.075 (5) defines marital assets as those acquired during the marriage resulting from the efforts of either party or from the expenditure of marital funds. Scott v. Scott, 643 So. 2d 1124 (Fla. 4th D.C.A. 1994).
17 Fla. Stat. §61.075 (3), (4), (5)(a), (b); Herrera v. Herrera, 895 So. 2d 1171 (Fla. 3d D.C.A. 2005); Mitchell v. Mitchell, 841 So. 2d 564 (Fla. 2d D.C.A. 2003).
18 Fla. Stat. §61.075 (1).
19 See Feger v. Feger, 850 So. 2d 61 (Fla. 2d D.C.A. 2003); Krafchuk v. Krafchuk, 804 So. 2d 376 (Fla. 4th D.C.A. 2001). According to Fla. Stat. §61.075 (1), the court may consider specific factors in determining if one spouse should receive more than one-half of the marital property in a plan to equitably distribute the real property. They include the contribution of each spouse to the acquisition of the marital property; length of the marriage, age, and health of the spouses; amount and sources of income of the spouses; the worth, liabilities, and needs of each spouse and the opportunity of each for further acquisition of capital assets and income; standard of living established during the marriage; time necessary for a spouse to acquire sufficient education to enable the spouse to find appropriate employment; and any other factor necessary to do equity and justice between the spouses.
20 Costa v. Costa, 951 So. 2d 924 (Fla. 4th D.C.A. 2007); O’Donnell v. Marks, 823 So. 2d 197 (Fla. 4th D.C.A. 2002); McCarthy v. McCarthy, 922 So. 2d 223 (Fla. 3d D.C.A. 2005); Biondo v. Powers, 743 So. 2d 161 (Fla. 4th D.C.A. 1999).
21 Cintron v. King, 961 So. 2d 1010 (Fla. 4th D.C.A. 2007); Sheehan v. Sheehan, 943 So. 2d 818 (Fla. 4th D.C.A. 2006); Benz v. Benz, 557 So. 2d 124 (Fla. 3d D.C.A. 1990).
24 Bailey v. Parker, 492 So. 2d 1175 (Fla. 1st D.C.A. 1986).
25 Cintron v. King, 961 So. 2d 1010 (Fla. 4th D.C.A. 2007); Sheehan v. Sheehan, 943 So. 2d 818 (Fla. 4th D.C.A. 2006); Benz v. Benz, 557 So. 2d 124 (Fla. 3d D.C.A. 1990).
26 Costa v. Costa, 951 So. 2d 924 (Fla. 4th D.C.A. 2007); O’Donnell v. Marks, 823 So. 2d 197 (Fla. 4th D.C.A. 2002); McCarthy v. McCarthy, 922 So. 2d 223 (Fla. 3d D.C.A. 2005); Biondo v. Powers, 743 So. 2d 161 (Fla. 4th D.C.A. 1999); Eady v. Eady, 624 So. 2d 360 (Fla. 1st D.C.A. 1993).
27 See Brokaw v. McDougall, 20 Fla. 212 (1883); Schropeder v. Lawhon, 922 So. 2d 285 (Fla. 2d D.C.A. 2006); Burnett v. Burnett, 742 So. 2d 859 (Fla. 2d D.C.A. 1999).
28 Hernandez v. Hernandez, 654 So. 2d 171 (Fla. 3d D.C.A. 1994).
30 Martin v. Martin, 959 So. 2d 803 (Fla. 1st D.C.A. 2007).
31 Schroeder v. Lawhon, 922 So. 2d 285 (Fla. 2d D.C.A. 2006).
32 Fla. R. Civ. P. 1.570 (d) and Fla. Stat. §61.075 (4) (2006) provide the court with two situations where the entry of a (dissolution) judgment works to transfer title to real property. See also Hadden v. Cirelli, 675 So. 2d 1003 (Fla. 5th D.C.A. 1996); Alternative Development, Inc. v. St. Lucie Club and Apartment Homes Condominium Ass’n, Inc., 608 So. 2d 822 (Fla. 4th D.C.A. 1992). In Edwards-Riley v. Riley, 963 So. 2d 829 (Fla. 3d D.C.A. 2007), the court suggested that a partition action may no longer be necessary to divide or distribute real property owned by spouses jointly or in separate names in a FJDM. The decision relied on Fla. Stat. §61.075 (4), which provides that a final judgment can distribute assets and it “shall have the effect of a duly executed instrument of conveyance, transfer, release, or acquisition.”
33 Todd v. Todd, 734 So. 2d 537 (Fla.1st D.C.A. 1999).
34 Silverman v. Silverman, 940 So. 2d 615 (Fla. 2d D.C.A. 2006).
35 McCarthy v. McCarthy, 922 So. 2d 223 (Fla. 3d D.C.A. 2005).
36 Id. See also Berger v. Berger, 559 So. 2d 737 (Fla. 5th D.C.A. 1990); Iodice v. Scoville, 460 So. 2d 576 (Fla. 4th D.C.A. 1984).
37 Hernandez v. Hernandez, 645 So. 2d 171 (Fla. 3d D.C.A. 1994).
38 Barrow stated that possession by one tenant in common is presumed to be possession by all cotenants. In order to claim a 50 percent fair rental value setoff, the cotenant in possession must hold the real property against the out-of-possession cotenant as a result of an “ouster.” An ouster requires express notice or acts of possession inconsistent with and exclusive of the rights of an out-of-possession cotenant, and if an ouster occurs, an out-of-possession cotenant can set off 50 percent of the fair rental value of the residence against a 50 percent credit of the reimbursable household expenses. Sole possession of the former marital property by one cotenant, however, does not per se constitute an ouster. See White v. White, 820 So. 2d 432 (Fla. 4th D.C.A. 2002); Pearce v. Pearce, 626 So. 2d 294 (Fla. 5th D.C.A. 1993); Adkins v. Adkins, 595 So. 2d 1032 (Fla. 1st D.C.A. 1992); Bailey v. Parker, 492 So. 2d 1175 (Fla. 1st D.C.A. 1986). The ruling in Barrow relies on Coggan v. Coggan, 239 So. 2d 17 (Fla. 1970), and Potter v. Garrett, 52 So. 2d 115 (Fla.1951), that permitted a claim for recovery of 50 percent of the fair rental value for the use of the homestead as a setoff to a 50 percent credit of the reimbursable household expenses. Even though Barrow claimed to have clarified the fair rental setoff matter, it appears to have caused some confusion about the appropriateness of a setoff of 50 percent of the fair rental value to a 50 percent credit of the reimbursable household expenses. Barrow continued what was and still is a legal fiction requiring parties to set forth facts and circumstances of an “ouster” for there to be a setoff of 50 percent of the fair rental value of the use of the property. There is usually a history of animosity between former spouses and cotenants just before a FJDM or partition suit is begun, or else why would they separate and file for a FJDM or partition? If one cotenant lives in the home and the other moves out, those circumstances should be ample to demonstrate that the out-of-possession cotenant is not wanted on the property and has left. Changing the locks, evicting a cotenant, or proving other circumstances inconsistent with joint possession should not be required. If the courts want to continue to use an “ouster” to permit a 50 percent fair rental value setoff, there should be a lesser burden of proof from the current strict requirements. Second, if a setoff of 50 percent of the fair rental value is granted when a tenant in possession holds adversely or by an ouster, the court has imputed a setoff of 50 percent of the fair rental value, even when the home has never been rented to a third party. In most situations, it is only the family that has lived in the home without a tenant paying rent. Why would a third party want to live in a residence with a former spouse and children without a separate entrance and privacy? A better approach is to present evidence that reveals that part of a residence can be rented due to a past history, separate entrance, and the size of the residence. In most situations, extra rooms cannot be rented, because they have been used as dens, family rooms, and guest rooms. The Florida Supreme Court should consider receding from or overruling Barrow and its progeny.
39 See Sheehan v. Sheehan, 943 So. 2d 818 (Fla. 4th D.C.A. 2006); Donsky-Levine v. Levine, 658 So. 2d 1023 (Fla. 4th D.C.A. 1995); Gray v. Gray, 658 So. 2d 607 (Fla. 2d D.C.A. 1995); Knecht v. Knecht, 629 So. 2d 883 (Fla. 3d D.C.A. 1993); Benz v. Benz, 557 So. 2d 124 (Fla. 3d D.C.A. 1990).
40 See O’Donnell v. Marks, 823 So. 2d 197 (Fla. 4th D.C.A. 2002); Nelson v. Nelson, 544 So. 2d 273 (Fla. 1st D.C.A. 1989).
41 Fla. Stat. §61.075 (1); Smith v. Smith, 934 So. 2d 636 (Fla. 2d D.C.A. 2006); Williams v. Williams, 904 So. 2d 488 (Fla. 3d D.C.A. 2005); Peacock v. Peacock, 879 So. 2d 96 (Fla. 4th D.C.A. 2004); Palermo v. Palermo, 649 So. 2d 309 (Fla. 4th D.C.A. 1995).
42 For nonexempt real property, Fla. Stat. §55.10 (1) provides that a judgment, order, or decree becomes a lien on real property in any county when a certified copy is recorded in the official records of the county, as long as the judgment, order, or decree has the address of the person who has a lien as a result of such judgment, order, or decree, or a separate affidavit is recorded at the same time with the judgment, order, or decree stating the address of the person who has a lien as a result of such judgment, order, or decree.
43 Fla. Const., art. X, §4 (a), provides for a homestead exemption from forced sale under process of any court of any judgment, decree, or execution, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field, or other labor performed on the realty owned by a natural person.
44 United States v. Craft, 535 U.S. 274 (2002).
45 Kaecek v. Knight, 447 So. 2d 900 (Fla. 2d D.C.A. 1984).
46 Rose v. Hansell, 929 So. 2d 22 (Fla. 3d D.C.A. 2006).
47 The decision in Condrey v. Condrey, 92 So. 2d 423, 427 (Fla. 1957), is very limited and cautions litigants to be wary of expecting a court to deny a request for partition, except in unusual circumstances.
48 See Forehand v. Peacock, 77 So. 2d 625 (Fla. 1955); Bucacci v. Boutin, 933 So. 2d 580 (Fla. 3d D.C.A. 2006).
49 See Vinson v. Johnson, 931 So. 2d 245 (Fla. 1st D.C.A. 2006); Smith v. Moughan, 442 So. 2d 338 (Fla. 5th D.C.A. 1983); Cohen v. Roth, 417 So. 2d 743 (Fla. 3d D.C.A. 1982).
50 Davis v. Dieujuste, 496 So. 2d 806 (Fla. 1986); Rice v. Corry, 854 So. 2d 772 (Fla. 2d D.C.A. 2003); Wilisch v. Wilisch, 335 So. 2d 861 (Fla. 3d D.C.A. 1976).
51 Duncan v. Duncan, 379 So. 2d 949 (Fla. 1980); Todd v. Todd, 734 So. 2d 537 (Fla. 1st D.C.A. 1999); Smith v. Smith, 464 So. 2d 1287 (Fla 5th D.C.A. 1985); Smith v. Maughan, 442 So. 2d 338 (Fla. 5th D.C.A. 1983); Lambert v. Lambert, 403 So. 2d 484 (Fla. 1st D.C.A. 1981).
52 See Martin v. Martin, 959 So. 2d 803 (Fla. 1st D.C.A. 2007); Biondo v. Powers, 743 So. 2d 161 (Fla. 4th D.C.A.1999).
Harry M. Hipler is a sole practitioner in Dania Beach and practices in the areas of family law, commercial litigation, and municipal law. He received his J.D. in 1975 from the University of Florida and an LL.M. in taxation from the University of Miami in 1981.
This column is submitted on behalf of the Family Law Section, Allyson Hughes, chair, and Susan W. Savard and Laura Davis Smith, editors.