Senior Law Clerk
Partition actions look simple on paper. Two people own property together, they can’t
agree on what to do with it, a court orders a sale, and the proceeds get split. Easy
enough — until someone starts asking about offsets. That’s where things get interesting,
and a recent Florida appellate opinion offers a useful reminder of what courts will and
won’t credit in an unequal distribution.
In Artis v. Stephens, two co-tenants had jointly purchased a house and operated under
an informal but longstanding arrangement: one party contributed a fixed $500 a month,
and the other was responsible for carrying the mortgage. No written contract. No signed
agreement. Just a course of dealing that held for years, even as the mortgage payment
increased and one party continued absorbing the difference. However, when the
mortgage went into foreclosure not once but twice, the other cotenant stepped in and
paid approximately $39,000 out of pocket to save the property.
At partition, the trial court credited the full $39,000 to the party who made those
payments, and the appellate court affirmed. The key point: even though cotenants
generally share property expenses proportionally, that default rule can be altered by
agreement. Here, competent and substantial evidence supported the existence of an
agreement even without a written contract that placed primary mortgage responsibility
on one party. When the other stepped outside the scope of her agreed obligations to
save the property from foreclosure, those payments qualified as creditable
contributions. The takeaway for practitioners is worth remembering: course of dealing
between co-tenants can establish an enforceable expense-sharing arrangement, and
that arrangement will shape how offsets are allocated when the property eventually
sells.
The second issue is where the trial court stumbled, and it’s a mistake worth flagging for
anyone handling these cases. After things soured between the parties, one cotenant
changed the locks and effectively ousted the other from the property. Under Florida law,
when a cotenant is ousted from exclusive possession of jointly-owned property, they’re
entitled to a rental credit, but that credit is measured by the reasonable rental value of
the subject property, not whatever the ousted cotenant ends up paying in substitute
housing. The trial court got this wrong. The only evidence in the record was what the
ousted party was paying $1,300 a month for their new apartment, and the court used
that figure to award a $23,400 rental credit. The appellate court reversed, holding that
the party seeking the credit had the opportunity to present evidence of the subject
property’s fair market rental value and simply failed to do so. No competent evidence of
the subject property’s fair rental value, no credit.
That second ruling is a practical lesson as much as a legal one. If you represent a client
who has been ousted from jointly-owned property, you need an appraiser or
comparable rental data for that property in the record. Your client’s rent check from their
new apartment down the street isn’t going to cut it. Instead, try the Zillow rental estimate
of the subject property. As this case illustrates, failing to present the right evidence
doesn’t just weaken your case, it can wipe out the credit entirely.
Partition litigation has a way of surfacing all the complexity that informal co-ownership
arrangements quietly accumulate over the years. Getting the evidentiary foundation
right from the start is what separates a clean recovery from a reversal.
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