War of the Roses

Okay, so before you go full all-out Michael Douglas and break out the masking tape and chain saws, what do you do when you find yourself locked into a piece of property with that someone special you can no longer talk to rationally?

It’s not just Dolly Parton crooning D-I-V-O-R-C-E but it could be the “deal” your golfing buddy talked you into, buying what turns out to be that “perfect investment property” you now can’t get him to sell at any price and you must be losing your touch because you can’t get him to wager the property on a low-score on the back nine. It might be the property grandpa and grandma put in your name . . . along with your fourteen brothers, sisters and assorted cousins before they passed on leaving you to be the only responsible party paying the taxes for everyone else.

What do you do when you own property together with someone else without a specified piece of that property being your particular slice of the pie? In some cases, you might be able to sell your share to a stranger and stick him or her with your problem but to find that buyer might be similar to finding a living Unicorn, a great idea but an almost impossible creature to find.

Although it most often happens when you buy property with the simple terminology “as Husband and Wife,” that is the only way to create the perfect post-divorce storm. Those four words create in Florida, and most states (excluding Georgia it seems, making me wonder if we should recognize Georgia and Louisiana as “States” any longer), a “tenancy by the entireties” which is a unique legal device which means the property is owned by each of two parties “by the whole.” Each party, either Husband or Wife owns 100% of the property subject only to the other party’s 100% interest. Even a divorce only clarifies this dilemma to the point of formally announcing that you both finally said “I no longer do, your Honor please set me free.” But even that Judgment declaring your marriage ended and “restoring you to the status of being single” (perhaps how not to foul up your new-found freedom might find its way into a future article?) has not solved your problem other than to change your “tenancy by the entireties property” into a pair of “co-tenants” who presently cannot agree if it is the moon present in the sky or the sun.

And whether it’s your ex-wife or your brother-in-law who keeps running interference for your “cotenant” sister, every “reasonable” division of the property that you suggest is met with howls of “that’s not fair.” Perhaps you are being met by claims that you have picked the “best ten acres” for your share and either no one is voluntarily joining you in that “reasonable” plan of division or everyone else is in agreement except for your dear cousin, “Cousin Eddie,” complete with that metal plate the VA put in his head.

You cannot get “Cousin Eddie,” or perhaps your ex-husband who is your “Cousin Eddie,” to agree to either sell the whole property or buy you out or divide the property so that you can sell “your share.” This is all the more problematic when a house is involved because now there is no way to divide the property fairly to each co-owners’ satisfaction.

Are you “stuck” like this forever? Another problem like the national debt that will just be passed on to your children and grandchildren?

There is a way out.

Caveat that with the fair disclosure, that like most Judicially imposed solutions, this will not be “perfect” but it will solve the War of the Roses.

The answer might be legal “Partition.” Essentially, “Partition” was actually designed for this very situation, which goes to show that sometimes even lawyers have something close to common sense. Better yet, under the Partition Chapter, Chapter 64 of the Florida Statutes we have both ordinary Partition which would apply to a divorce or the golfing buddy investment partnership gone wrong and the “Uniform Partition of Heirs Property Act” which applies to the fourteen grandchildren who inherited from Grandpa and Grandma. But in either type Partition is a legal action which can be filed where one co-owner asks the Court to order an indivisible property sold and reduced to sales proceeds which can be easily divided. No more concerns about who gets the best ten acres, everyone gets their share of the best ten acres and the other not-so-good portions of the forty-acre whole parcel.

But this does not come without warts. Unfortunately, for ordinary Partitions, unless all parties agree, the Judge cannot order the property listed with a realtor and properly marketed without a unanimous stipulation by all parties. By statute, without that stipulation, the Judge has to order the property sold on the courthouse steps like foreclosed property and that ALWAYS means you will have bargain basement buyers looking to buy the property under-market so they can quickly sell the property for a profit by taking their time and marketing the property and holding out for the best offer from a buyer willing to pay market price. Under “Uniform Partition of Heirs Property Act” there are far more forgiving options available to the Judge, even without unanimous agreement, to preserve inherited property in the family.

The good news, if there is good news would be that, based upon experience, for most people, once it finally dawns on them the Judge is going to order the property sold and the proceeds distributed, they will generally opt for reasonability and FINALLY agree to stipulate and ask the Court, along with all the other co-owners, to a buy-out price or to allow the property to be marketed by a realtor for a reasonable period of time before considering the draconian option of a forced sale on the courthouse steps.

So, Clark, fear not, when you are finally ready to give up on Cousin Eddie, perhaps a partition lawsuit is the thing you need to free you from the loggerhead. And if the source of the problem is your ex, it is either that or you need to show up at your ex’s place, a dozen roses in hand, with Henson Cargill crooning, “Today I started loving you again” . . . as if that is going to happen.

This article is for general information only and is not intended as and does not constitute legal advice or solicitation of a prospective client. It should not be relied on for legal advice in any particular factual circumstance.