CopyCited 9 times | Published | Florida 2nd District Court of Appeal
...ed between the parties hereto. Once the trial court makes a judgment of partition, absent a contrary stipulation by interested parties, partition should proceed under Chapter 64, Florida Statutes. See Banfi v. Banfi,
123 So.2d 52 (Fla. 3d DCA 1960). Section
64.061(1) provides for appointment of three suitable persons as commissioners to make the partition....
...See Banfi v. Banfi, supra . Accordingly, the last paragraph of the final judgment quoted above is stricken and this cause is remanded to the trial court for entry of an amended final judgment providing *134 for partition in accordance with the mechanics of Section 64.061, et seq....
CopyCited 9 times | Published | Florida 1st District Court of Appeal
...A further question remains as to whether Lambert is entitled under Chapter 64, Florida Statutes, to a partition in kind or an outright sale of the property. Lambert alternatively prayed for both remedies in his petition. However, he did not plead an uncontested allegation that the marital home was indivisible pursuant to Section 64.061(4)....
...Therefore, on remand, the trial court should permit Lambert to amend his petition by alleging, if he can, that the home is nondivisible. Moreover, it may be necessary for the court to appoint three persons as commissioners to make a report concerning whether partition can be made without prejudice to the owners. See Section
64.061 and
64.071(1), Florida Statutes....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal
...ies to conclude private arrangements for the sale of the beach house subject to the approval of the court but providing that if the disposition of the property is not amicably resolved within such time, partition and sale should proceed according to Section 64.061 et seq., Florida Statutes (1977)....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2006 WL 398605
...orrect in granting the summary judgment for partition. When a court grants a partition, it may order a sale only when it finds that the property sought to be partitioned is indivisible and is not subject to partition without prejudice to its owners. § 64.061(4), Fla....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2006 WL 305433
...t. III. THE APPLICABLE LAW Actions for partition are governed by chapter 64, Florida Statutes (2001), and they are based on equitable principles. Thompson v. Mitchell,
429 So.2d 388, 390 (Fla. 1st DCA 1983). Once a judgment for partition is entered, section
64.061 controls the applicable procedure....
...parties the title to the parcels of the lands allotted to them respectively, and giving each of them the possession of and quieting title to their respective shares as against the other parties to the action or those claiming through or under them. Section 64.061 assigns the critical role in the partition process to the commissioners....
...ive situations in relation to the property before the partition.'" Bird v. Bird,
15 Fla. 424, 445-46 (1875). Upon the completion of their investigation, the commissioners are to make a partition of the property and report it to the court in writing. §
64.061(2). The parties have ten days from the service of the commissioners' report to file objections to it. §
64.061(3)....
...to it. See Bird,
15 Fla. at 445; see also Thompson,
429 So.2d at 390 (declining to hold a commissioners' report conclusive). In addition, the trial court has the authority to remove the commissioners for good cause and to appoint their replacements. §
64.061(1)....
...vements Made by Tenants in Common, 1 A.L.R. 1189 (1919), supplemented, R.P.D., 122 A.L.R. 234 *294 (1939); 2 American Law of Property § 6.18, at 82 (A. James Casner, ed., 1952) (discussing adjustment in favor of cotenant who has made improvements). Section 64.061 is silent concerning the procedure to be followed when the trial court sustains an objection to a commissioners' report....
...ke a different allotment of the parcels. See Brokaw,
20 Fla. at 227. This procedure appears to be in accord with the general practice in the United States. See generally 59A Am.Jur.2d Partition § 127 (2003); 68 C.J.S. Partition § 138 (1998). Under section
64.061, a remand to the commissioners may be a practical necessity....
...Unless the property has already been subdivided, only a surveyor can prepare the necessary legal descriptions of the parcels to be allotted to the parties. [6] If good cause appears, the trial court may also remove the commissioners and appoint replacements. § 64.061(1)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 17638, 2010 WL 4628571
...In the final judgment, the circuit court found that the grove property, consisting of approximately seventy-seven acres, was "not capable of physical division." [2] Accordingly, the circuit court appointed a special magistrate to take immediate possession of and to sell the property in accordance with section 64.061(4), Florida Statutes (2008)....
...Flashman owned the corporation and served as its registered agent. [2] The circuit court apparently made this finding based on an uncontested allegation to that effect in Mr. Dass's verified complaint. The circuit court did not appoint commissioners in accordance with section 64.061(1), Florida Statutes (2008)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal
...First of all, the husband's petition seeking division of the property does not set forth the required allegations as set forth in Section
64.041, Florida Statutes (1975). Furthermore, the final judgment itself does not provide for the appointment of commissioners or a master, as may be appropriate, in compliance with Section
64.061, Florida Statutes (1975), *1127 nor does it provide for the manner and conditions of sale pursuant to Section
64.071, Florida Statutes (1975)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 4025, 2015 WL 1259605
...Where property to be partitioned is indivisible and subject to sale, there are three different procedures that may be available to a trial court for conducting a partition sale. A brief review of these three procedures will assist in our analysis of the issue presented. Under section 64.061(4), where there is an uncontested allegation that the property is not divisible without prejudice to the owners and the court is satisfied that this' allegation is correct, it is unnecessary to appoint a commission to determine whether and how a partition in kind may be appropriate as set out in sections 64.061(1)-(3). § 64.061(4); see also Geraci v....
...Geraci,
963 So.2d 904, 907 (Fla. 2d DCA 2007). Instead, “on motion of any party and notice to the others the court may appoint a special magistrate or the clerk to make sale of the property either at private sale or as provided by [section]
64.071.” §
64.061(4)....
...paid into the court to be divided among the parties in proportion to their interest.” §
64.071(1). Thus, under chapter 64, the trial court may either (1) order a private sale under the supervision of the clerk or a magistrate in accordance with section
64.061(4), or (2) order a judicial sale by public auction in accordance with section
64.071....
...sceptible to an equitable physical division,” the trial court in this case had three options for ordering a partition sale: (1) a judicial sale by public auction under section
64.071, (2) a private sale conducted by the clerk or a magistrate under section
64.061(4), or (3) a private sale based on the stipulation of the parties in accordance with Carlsen ....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 6433, 2011 WL 1705574
...Kathleen Smith appeals from an order approving the sale of certain real property pursuant to a sales contract procured by the court-appointed special magistrate. The special magistrate had been appointed by the court pursuant to a final judgment of partition. See § 64.061(4), Fla....
CopyPublished | Florida 5th District Court of Appeal
...o assume personal
jurisdiction over [Mr. Fradera].” The trial court ratified the joint stipulation by
order.
2
Mr. Fradera later filed a motion for appointment of special magistrate
pursuant to section 64.061(4), Florida Statutes (2021), to conduct a private
sale in order to partition the property at issue, stating, “It is undisputed in this
case that the Real Property is indivisible and cannot be divided without
prejudice to the parties.” Ms....
...Fradera that the trial court incorrectly characterized his motion to appoint
magistrate as one seeking affirmative relief materially beneficial to him. Mr.
Fradera simply sought to initiate the next procedural step for the trial court in
the partition action pursuant to section 64.061(4), which states that once the
parties have agreed that dividing the property at issue would cause prejudice
to one or both of the parties (as Ms....
...Fradera did in both the partition
petition and the motion to appoint magistrate), the trial court may, “on motion
of any party and notice to the others[,] . . . appoint a special magistrate or
the clerk to make sale of the property either at private sale or as provided by
s.
64.071.” §
64.061(4), Fla....
...2d 427, 428 (Fla. 4th DCA 1985).
As such, Mr. Fradera’s request did not waive personal jurisdiction by seeking
affirmative relief or material benefit, but rather the request was to move the
in rem proceedings forward and finalize the partition pursuant to section
64.061(4).
6
The sole case cited by the trial court in its order, First Wisconsin, is
distinguishable from the instant case....
CopyPublished | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 17714, 2015 WL 7444186
...Failing the submission by the parties of their proposed listing prices, the parties shall submit a price for which the land should be sold at private “auction. Appellants moved for a rehearing, arguing that none of, the .parties ,or any of the pro se heirs had moved .for - a sale of the property, and that section 64.061(4),.Flori-da Statutes, requires that a.party must do so before a court can order the property to be sold....
...for rehearing. 2 Analysis Actions for partition are governed by chapter 64, Florida Statutes (2001), and they are based on equitable principles. Thompson v. Mitchell,
429 So.2d 388, 390 (Fla. 1st DCA 1983). Once a judgment for partition is entered, section
64.061 controls the applicable procedure. Schroeder v. Lawhon,
922 So.2d 285, 292 (Fla. 2d DCA 2006). Section
64.061, Florida Statutes, explains the procedure for appointing commissioners responsible for partitioning property that is the subject of a judgment of partition, 'as well as the commissioners’ powers and responsibilities, which includes S...
...Although they are based on equitable principles, a plain reading of the statute provides that a sale may only be ordered if a party alleges that partition is not possible, “without prejudice to the owners of it or if a judgment of partition is entered and-the court is satisfied that the allegation is correct .....” § 64.061(4), Fla....
...nts for attorney fees, costs, taxes and profits.” The court did not provide any of the facts upon which it relied for these findings, and it is not clear how the age of the case had any impact on the ability to partition the property. Furthermore, section 64.061, Florida Statutes, requires an allegation that partition is not possible without prejudice, and the court in Thompson based its reversal of an order of sale on the fact that the objection to the partition at issue was not well-founded,...
CopyPublished | District Court of Appeal of Florida | 1969 Fla. App. LEXIS 6194
...vate sale. We affirm. As to the first point, the judgment appealed clearly stated that the trial court found “the subject property cannot be partitioned without prejudice to the own *712 ers”. This finding constitutes substantial compliance with § 64.061(4), Fla.Stat., F.S.A....
...oned is indivisible and is not subject to partition without prejudice to the owners”, which was the situation in the instant case by the complaint and answer filed, that the trial judge should have proceeded under §
64.071, Fla.Stat., rather than §
64.061, Fla.Stat., F.S.A., as he apparently did with the consent and acquiscence of all parties.
CopyPublished | District Court of Appeal of Florida
the trial court’s order fails to comply with section
64.061(4), Florida Statutes (2021), because the order
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 18897
...had seven children: Annie Mae, Robert, Alvin Jr., Louise, Mattie, Ralph, and Willie. Willie predeceased Alvin Sr. leaving seven children of her own. The appellees, Annie Mae and two of Willie’s children, filed a complaint for partition and sale, alleging that the property was not subject to partition in kind. 1 Pursuant to § 64.061, Florida Statutes, a commission was appointed to make the partition or report that such a division was not possible without prejudice to the owners....
...Suits in partition are governed by Chapter 64, Florida Statutes, and derive from equity jurisdiction. Unless a properly foundationed determination is made that property cannot be partitioned in kind without prejudice, an order of sale may not be entered. § 64.061(4), supra; Hosle v....
...We determine only that in this case the objections to the report were not well founded, 9 and the court therefore erred in ordering the property sold. Reversed. SHIVERS and JOANOS, JJ., concur. . Defaults were entered against Ralph and five of Willie’s children. . § 64.061(2), Florida Statutes....
...The appraised value of the undivided 200 acres was less than the sum of the appraised values of the parcels. . Alvin, Mattie, and Louise derived their livelihood primarily from Alvin’s work on the farm. *389 All are elderly, with health problems, and untrained in other fields of employment. . § 64.061(3), Florida Statutes....
...The property is indivisible and none of it is subject to partition without prejudice to the owners. 4. The Clerk of the Court is directed to sell the premises on the 25 day of June, 1982, at 11:00 o’clock. A stay was entered pending the outcome of this appeal. . 64.061 ......
CopyPublished | District Court of Appeal of Florida | 1981 Fla. App. LEXIS 21816
be held in accordance with the mechanics of section
64.061 et seq. Florida Statutes (1979). See Carlsen
CopyPublished | Florida 2nd District Court of Appeal | 2007 WL 2403787
...The only issue on appeal, which appears to be a matter of first impression, is whether a trial court may conduct a hearing to determine whether property subject to partition is not divisible without first appointing commissioners to consider the matter. We conclude that section 64.061(4), Florida Statutes (2005), authorizes such a procedure when the parties' pleadings have established the property's divisibility as a disputed issue....
...Nick answered the complaint, denying that the property was indivisible and requesting an order partitioning the property into two parts. He filed a counterclaim requesting that the court appoint three commissioners to effectuate the partition pursuant to section 64.061(1)....
...s are entitled to it." The judgment then sets forth the "interest to be allotted" to each plaintiff or defendant with an ownership interest in the property. §
64.051. The process by which the partition or allotment is made, however, is set forth in section
64.061. This section establishes a procedure for physically dividing property unless the property is indivisible. Section
64.061(1) states: APPOINTMENT AND REMOVAL....
...rs to make the partition. They shall be selected by the court unless agreed on by the parties. They may be removed by the court for good cause and others appointed in their places. The commissioners' powers, duties, and compensation are explained in section 64.061(2), which also requires the commissioners to prepare a written report "to make partition of the lands in question according to the court's order." Pursuant to section 64.061(3), any party who disagrees with the report may file an objection within ten days....
...ion by conducting an evidentiary hearing and making findings of fact. In the event no objections are filed, the court must confirm the report and enter a final judgment "vesting in the parties the title to the parcels of the lands allotted to them." § 64.061(3). Section 64.061(4) explains the procedure when the parties agree that the property is indivisible without prejudice to the owners or if the court "is satisfied" that such an allegation is correct....
...ay order the land to be sold at public auction to the highest bidder by the commissioners or the clerk. . . . Nick argues that once a judgment of partition is entered pursuant to section
64.051, the trial court must appoint commissioners pursuant to section
64.061(1) to attempt to divide the property in kind. This interpretation, however, ignores the provisions of section
64.061(4), which allows the trial court to forego this procedure when it is "satisfied," or when the parties agree, that the land is indivisible....
...One brother or the other was unquestionably going to object to the commissioners' report, no matter what the recommendation. That objection would lead to an evidentiary hearing on the issue, at the end of which the trial court could order a sale by the clerk pursuant to section
64.071(1), just as it did here pursuant to section
64.061(4)....
...ically divide the property, only to have the commissioners conclude that this is not possible without prejudice to one or more parties. Nothing in this section prevents the trial court from making an initial determination on divisibility pursuant to section 64.061(4) when the circumstances merit such a procedure....
