Key Points

  • The Third District reversed a Miami-Dade trial court's denial of partition of a single-family home owned in equal one-third shares by three joint tenants.
  • Under Condrey v. Condrey, a court may refuse partition only in extreme cases or where manifest injustice, fraud or oppression would result, and the trial court made no such findings.
  • The trial court's substitute remedy, a reverse mortgage paired with an enhanced life estate, was improper because no pleading requested it.
  • The trial court also erred by failing to account for the property's appreciation and the owners' proportionate expenses.
  • Because the parties agreed on their interests and that the home cannot be divided in kind, the panel remanded with instructions to order partition by sale, followed by a possible accounting.

A Florida appeals court on Wednesday directed a trial court to order the sale of a Miami-Dade single-family home owned in equal shares by three people, holding that a trial judge could not refuse to divide the property and instead require one owner to take out a reverse mortgage and pay the other two.

A three-judge panel of the Third District Court of Appeal reversed Miami-Dade Circuit Judge Vivianne V. del Rio, who had denied partition after a non-jury trial. Judge Gordo wrote the opinion for the panel, which also included Judges Lobree and Gooden. The court denied a motion for rehearing and clarification but withdrew its earlier opinion and issued the new one in its place.

The ruling holds that co-owners of a house that cannot be physically split are entitled to a court-ordered sale unless the owner resisting it proves extreme circumstances, and that a trial court may not substitute a remedy that appears in none of the pleadings. "Partition is a matter of right for co-owners of indivisible property," Judge Gordo wrote. Partition is the proceeding in which co-owners ask a court to divide property or, if it cannot be divided, to sell it and divide the proceeds.

Appellants Norma Dominguez and a second co-owner each hold an undivided one-third interest in the home with appellee Nancy Suarez. All three took title under a 2013 deed as joint tenants with rights of survivorship.

Rather than order partition, the trial court required Suarez, as the appellate opinion describes the order, to obtain a reverse mortgage "for the maximum available amount" and to pay the net proceeds equally to the two appellants. The order also directed Suarez to sign a deed reserving to herself an enhanced life estate with the remainder to the appellants. According to the appellate opinion, the order "contained no findings of manifest injustice, fraud or oppression."

The panel acknowledged that partition actions are equitable and that a trial court's decisions in them are ordinarily reviewed for abuse of discretion. But the court reviewed de novo, without deference to the trial judge, "the trial court's legal conclusions and application of Chapter 64's statutory framework to undisputed facts," citing its own 2023 decision in Parisi v. de Kingston. Chapter 64 of the Florida Statutes governs partition.

The opinion grounded the right to partition in the statute's text. Section 64.051 provides that "partition be made if it appears that the parties are entitled to it." The panel also quoted the Third District's 2006 decision in Bucacci v. Boutin, which stated that the general rule is that "partition is a matter of right."

The Florida Supreme Court has allowed trial judges some room to refuse partition. In Condrey v. Condrey, a 1957 decision, the high court held that a court of equity may decline to grant it, but that the discretion "should be so exercised only in extreme cases or where manifest injustice, fraud or oppression will result if partition is granted." Applying that standard, the panel held that Suarez "failed to establish the extreme circumstances, manifest injustice, fraud or oppression required for a court to properly refuse the general right to partition."

The panel then held that the trial court's alternative was independently improper. "The creative remedy fashioned by the trial court—a reverse mortgage with an enhanced life estate—was never requested in any pleading," Judge Gordo wrote. The court relied on the Fifth District's 2022 decision in Butler v. Brown, which held that courts "are not authorized to award relief not requested in the pleadings" and that granting such relief "is an abuse of discretion . . . and reversible error."

The opinion also quoted the Second District's 2022 decision in Morrison v. Smolarick, which held that partition law allows only two outcomes. The Second District wrote in that case: "[E]ither the property is divided or, if it cannot be divided, the funds from its sale are divided."

The panel identified a third error in the trial court's order, which "failed to take into account appreciation of the property and proportionate expenses." Citing the Third District's 2019 decision in Fernandez v. Marrero, the court wrote that in a partition proceeding "there must be an accounting to determine whether each co-tenant has paid his or her proportionate share of the expenses of the property."

The panel directed a sale because the facts were undisputed. The parties agreed that each owns a one-third interest and that the home "cannot be divided in kind without prejudice," which the court described as "the only prerequisites for partition by sale." Because "the record conclusively establishes the statutory prerequisites for partition," the panel held, the trial court must order the sale.

Among the authorities supporting that disposition, the panel cited Bucacci, in which the Third District remanded with directions that the property be sold, that an accounting adjust the owners' contributions and expenses, and that the proceeds be distributed in proportion to each owner's interest. Suarez also appears in the caption as cross-appellant, but the opinion does not separately address any cross-appeal issue.

Lawyers for Dominguez and the other appellant included Erik B. Espinosa of The Law Offices of Erik B. Espinosa, P.A. Suarez was represented by Julieta Gomez de Mello of DE MELLO LAW, INC.

The case returns to the Miami-Dade Circuit Court with instructions to order partition by sale, after which the trial court may conduct an accounting. The opinion states that it is not final until disposition of any timely filed motion for rehearing. The case is Dominguez v. Suarez, No. 3D25-0823.