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In Florida, partition is a statutory remedy by which a joint owner of real estate can ask a court to divide the property. See generally Chapter 64, Florida Statutes. Partition can be physical, whereby the subject land itself is divided amongst the joint owners, or it can be via sale and division of the proceeds to the extent a physical partition will result in some type of prejudice to the owners. See §64.071. The partition remedy enables the owners of the subject land to protect their respective interests despite any disagreements as to how the property should be used or whether it should be sold. Florida law also contemplates partition of personalty by the same procedures as are applicable to realty. See §64.091.

Although the remedy is widely recognized throughout the American and English common law and has been codified within the Florida Statutes for nearly 200 years, it is often incorrectly invoked by practitioners and misconstrued by judges. The focus of this topic will be the standing requirement for partition as set forth in §64.031, which states:

“Parties.—The action may be filed 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” (emphasis added).

The above provision therefore clearly and expressly limits the partition remedy to three classes of property owners – beginning with joint tenants. A joint tenancy is an interest in property created simultaneously amongst two or more owners. It contemplates each joint tenant having an equal, undivided interest in the subject property. See Siewak v. AmSouth Bank, 2006 WL 3391222 at 5, n.4 (M.D.Fla. Nov. 22, 2006) (“Here, Plaintiffs’ holding of the property as joint tenants gives each Plaintiff a common and undivided right to the entire value of the claim.”) A joint tenancy also creates a “right of survivorship” whereby the death of a joint tenant automatically (that is, without the need for probate) transfers the decedent’s interest to the remaining joint tenant(s). Under Florida law, a joint tenancy requires unity of interest, title, time and possession. See Weed v. Knox, 157 Fla. 896, 900 (1946); see also Beal Bank, SSB v. Almand and Associates, 780 So.2d 45, 53 (Fla.2001) (“…the owners’ interests in the property must be identical, the interests must have originated in the identical conveyance, and the interests must have commenced simultaneously.”)

In contrast, a tenancy in common –while also a form of joint ownership amongst two or more persons – requires only unity of possession. Id. (“Tenancies in common, joint tenancies, and tenancies by the entireties all share the characteristic of unity of possession; however, tenancies in common do not share the other characteristics or unities.”) This means that while a tenancy in common must give each tenant a simultaneous right to possession according to such tenant’s interest in the subject property, each tenant may nevertheless own different percentages and their respective interests can arise separately from unrelated conveyances at different times.

A coparcenary is nearly identical to a tenancy in common, in that it consists of joint ownership of property with each coparcener owning an undivided, transferable interest. Unlike tenancies in common, however, a coparcenary arises only by inheritance from a common ancestor.

As can be discerned from the above definitions, the three classes of ownership eligible for partition under §64.031 all share the “unity of possession” – meaning each ownership interest exists simultaneously and jointly, such that the owners share the concurrent right to possession of the subject property. It therefore seems clear that the remedy is not available to one who has no current possessory interest in the property sought to be partitioned. See, e.g., Garcia-Tunon v. Garcia-Tunon, 472 So.2d 1378, 1379 (Fla. 2d DCA 1985) (“The purpose of [§64.031] is to provide for partition only among those who have joint interests”, emphasis added). If, for example, a litigant is pursuing one or more claims in an effort to gain possession of the property in the first instance (such as a mortgage foreclosure action), partition is unavailable under Florida law. See, e.g., Rountree v. Rountree, 101 So.2d 43, 44 (Fla.1958) (partition action cannot be used to settle a disputed title to property).

Yet, on two separate occasions, in two unrelated cases I was defending before different judges, partition claims were allowed to proceed in favor of plaintiffs who did not have a current possessory interest in the property sought to be partitioned. In both cases, the operative complaint contained clear allegations showing that the plaintiffs were neither joint tenants, tenants in common nor coparceners and, therefore, entirely ineligible to claim partition as per the express terms of §64.031.

The first was before Judge Martin Bidwill in the Seventeenth Judicial Circuit Court in and for Broward County, Florida. Upon hearing my argument in favor of dismissal of the partition claim pursuant to the statute and various Florida precedent holding that the remedy could not be invoked in the absence of a current possessory interest, Judge Bidwill calmly (and rather shockingly) responded: “What’s the harm?” Dear reader, please allow me to unpack this fairly remarkable statement. In the face of binding precedent (including from the Florida Supreme Court) and a controlling statute (§64.031) which collectively and inarguably prohibited the use of the partition remedy in the manner being attempted in a case before him, Judge Bidwill simply did not care. In his view, my client wasn’t suffering any “harm” by the allowance of a patently-defective partition claim. My client, however – after incurring the attorneys’ fees to defend the claim under the threat of losing his house if the claim ultimately succeeded – surely did not share Judge Bidwill’s apathy. In a courtroom like that, there is no democracy. It is a dictatorship.

The second was before Judge Abby Cynamon in the Eleventh Judicial Circuit Court in and for Miami-Dade County, Florida. When I argued my motion to dismiss the partition claim pending against my client in that case, Judge Cynamon played it safe by defaulting to a common legal principle. She heard me argue that the plaintiff lacked standing to seek partition (because the allegations and attachments to his complaint clearly established his lack of a current possessory interest in the property sought to be partitioned), and therefore reasoned that standing is an affirmative defense. As a matter of Florida civil procedure, affirmative defenses typically cannot be asserted via motion and must instead be pleaded in an answer. See Malden v. Chase Home Finance, LLC, 312 So.3d 553, 554-55 (Fla. 1st DCA 2021) (trial court cannot look beyond the complaint’s “four corners” when considering a motion to dismiss, and affirmative defenses typically require proof of matters outside the complaint’s allegations). The lone exception to this rule, as recognized in Malden, is where (as in my case before Judge Cynamon) the defense appears on the face of the complaint – i.e., the plaintiff’s own allegations and/or attachments to the complaint establish the basis for the defense. That’s what I argued to Judge Cynamon. She denied my motion immediately thereafter.

These actual courtroom experiences illustrate a frightening reality for litigants: having the stronger position – being legally “right” – in no way assures victory. Whether due to judicial bias or ignorance, legally-defective rulings result in attorneys’ fees being incurred unnecessarily and court dockets clogged with cases that should have been quickly disposed.

To be sure, there are many competent judges sitting today that would quickly dispose of the partition claims in my cases. If any of you ever get sued by a non-owner of your property for partition, pray that your case ends up before one of them.