Foreclosure on Jointly Owned Property in Florida

Published: August 24, 2026

Florida real estate is commonly co-owned by family members, business partners, divorced spouses, or heirs who inherited property together. When one co-owner defaults on a mortgage or faces financial hardship, the foreclosure process can affect all co-owners -- even those who had nothing to do with the default.

Understanding how co-ownership works in Florida -- the difference between tenants in common and joint tenancy, what happens when only one owner signed the mortgage, and how partition actions interact with foreclosure -- is essential for every co-owner facing this situation.

How Florida Co-Ownership Works

Florida law recognizes several forms of co-ownership. The two most common are:

Tenants in Common (TIC)

Tenants in common is the default form of co-ownership in Florida when a deed does not specify otherwise. Each owner holds an undivided fractional interest in the entire property. Key characteristics:

Each owner's share can be different (e.g., 60/40, 33/33/33)
Each owner can sell, gift, or mortgage their own interest independently
Each owner's interest can pass through their estate at death
A creditor can lien and potentially force sale of one co-owner's interest
Any co-owner can file a partition action (F.S. Chapter 64) to force a sale

Joint Tenancy with Right of Survivorship (JTWROS)

Joint tenancy in Florida must be expressly created in the deed with survivorship language. Unlike tenants in common:

All owners must hold equal shares
Upon the death of one owner, their interest automatically passes to the surviving owner(s) -- outside of probate
A co-owner can sever joint tenancy (converting it to TIC) by conveying their interest
After severance, the creditor of one owner can pursue that owner's now-TIC interest

Co-Ownership Comparison Table

Factor	Tenants in Common	Joint Tenancy (JTWROS)
Equal shares required	No	Yes
At death, interest passes to...	Owner's estate / heirs	Surviving co-owner(s)
Owner can sell/mortgage their share	Yes	Yes (severs joint tenancy)
Creditor can lien one owner's share	Yes	Yes (after death or severance)
Partition action available	Yes (any co-owner)	Yes (any co-owner)
Homestead eligibility	Yes (if qualifying occupant)	Yes (if qualifying occupant)

When Only One Co-Owner Signed the Mortgage

One of the most complex scenarios occurs when two or more people own a property as tenants in common, but only one of them signed the mortgage. This can happen when an investment partner finances a share of a property, when an heir inherits a partial interest after the mortgage was placed, or when a property is transferred to additional owners after financing.

In this situation, the lender's mortgage lien attaches only to the interest that the signing co-owner held at the time the mortgage was executed. The lender can foreclose on that interest -- but the non-signing co-owner's interest may be unaffected.

The practical result at a foreclosure sale is that the winning bidder acquires the defaulting co-owner's fractional interest. They become a new co-owner alongside the non-defaulting owner, who retains their original share. This creates what Florida courts sometimes call a "tenancy in common with a stranger" -- a situation the non-defaulting owner did not choose and may want to resolve through a partition action.

Spousal Co-Ownership and the Homestead Signature Requirement

Florida law has a special rule for married couples: under F.S. 689.11 and Article X, Section 4 of the Florida Constitution, both spouses must sign any mortgage on homestead property, regardless of whether only one spouse owns it. A mortgage signed by only one spouse on homestead property may be invalid or voidable by the non-signing spouse.

This is a significant potential foreclosure defense. If your spouse took out a mortgage on your jointly owned homestead without your signature, the lender's lien may be subject to challenge. This is a fact-specific legal issue that requires review by a Florida real estate attorney.

Partition Actions and Foreclosure

Under F.S. Chapter 64, any co-owner can file a lawsuit in circuit court demanding partition of the property. The court can order either:

Partition in kind -- physical division of the property (rare for improved residential property)
Partition by sale -- court-ordered sale with proceeds divided among owners according to their interests

A partition action intersects with foreclosure in several ways:

A lender holding a judgment from a foreclosure on one co-owner's interest can use that judgment to initiate partition of the entire property to realize the value of their fractional interest
A non-defaulting co-owner can file a partition action to force a sale and use their proceeds to buy out the foreclosing lender's claim
If property is partitioned before a foreclosure sale, proceeds are distributed among owners, and the lender's claim is addressed from the defaulting owner's share

Options for Co-Owners Facing Foreclosure

Buy out the defaulting co-owner's interest-- A non-defaulting co-owner can purchase the other's interest and refinance the mortgage into their name alone, resolving the default and preserving sole ownership.
Sell the entire property -- A traditional sale of the full property with agreement of all co-owners can pay off the mortgage and distribute remaining proceeds. See our guide to selling before the foreclosure sale.
Short sale -- If the property is underwater, all co-owners who signed the mortgage must typically agree to a short sale. See the short sale guide.
Loan modification -- The defaulting co-owner can apply for a modification on their interest. Non-signing co-owners are generally not parties to the modification but may be affected by its terms. See the Flex Modification guide.
Deed in lieu of foreclosure -- All co-owners who signed the mortgage must typically cooperate with a deed in lieu. See the deed in lieu guide.
Bankruptcy -- Chapter 13 bankruptcy by the defaulting co-owner can pause foreclosure and create a repayment plan. Co-debtor protection may extend to the non-filing co-owner in some circumstances under 11 U.S.C. 1301.

Surplus Funds and Deficiency in a Co-Owner Foreclosure

If the foreclosure sale generates surplus funds under F.S. 45.032, the distribution depends on who has ownership interest in the property at the time of the sale. Co-owners with recorded interests in the property may have rights to a share of the surplus after the mortgage and other prior liens are satisfied. File a timely claim with the county clerk within 60 days of the Certificate of Sale.

For deficiency judgments, F.S. 702.06 caps the deficiency at the lesser of the judgment minus the sale price or the judgment minus fair market value. A deficiency judgment attaches only to the co-owners who signed the mortgage -- a non-signing co-owner is not personally liable for the deficiency, though a recorded judgment lien can encumber their real property interests in the county. See our FMV appraisal defense guide.

About Barrett Henry

Barrett Henry is a licensed Broker Associate at REMAX Collective with more than 23 years of Florida real estate experience. He works with co-owners navigating pre-foreclosure situations, including situations where multiple parties must agree on a path forward. For homeowners outside the Tampa Bay area, Barrett coordinates referrals to trusted local specialists statewide. Contact us for a free consultation.

Additional Resources

Frequently Asked Questions

What is the difference between tenants in common and joint tenancy in Florida?

Tenants in common (TIC) is the default co-ownership form in Florida. Each owner holds a separate, divisible share that can be sold, mortgaged, or inherited independently. Joint tenancy with right of survivorship (JTWROS) requires all four unities (time, title, interest, possession) and includes automatic transfer of the deceased owner's share to the surviving owner(s) at death. Florida does not recognize common-law joint tenancy by default -- the deed must expressly state "as joint tenants with right of survivorship."

What happens if only one co-owner signed the mortgage?

The foreclosure can only reach the interest that was mortgaged. If Owner A signed a mortgage and Owner B did not, the lender's lien attaches only to Owner A's undivided interest. The court can foreclose that interest, leaving Owner B with a fractional ownership claim. However, if both owners signed the mortgage (as is typical), both interests are subject to foreclosure.

Can my co-owner's creditor foreclose on our jointly owned property?

Yes, in the case of tenants in common. A judgment creditor of a TIC co-owner can record a judgment lien against that co-owner's interest and potentially force a partition sale under F.S. Chapter 64 to collect. For a joint tenancy with right of survivorship, a creditor of one owner cannot force a partition during the co-owner's lifetime but can reach the interest at death or if the joint tenancy is severed.

Can a co-owner who is NOT on the mortgage stop the foreclosure?

An uninvolved co-owner has limited options. They can purchase the defaulting co-owner's interest or the full property to prevent the foreclosure sale. They may also petition the court to intervene if they have a separate claim to title that was not properly joined. Generally, however, a co-owner who did not sign the mortgage has no right to stop a foreclosure on the other co-owner's mortgaged interest.

What is a partition action, and how does it relate to foreclosure?

A partition action (F.S. Chapter 64) is a lawsuit filed by any co-owner to force either a physical division of property (partition in kind) or a court-ordered sale with proceeds divided among owners (partition by sale). Any co-owner can file. A court-ordered partition sale is separate from a foreclosure sale -- it does not require a mortgage default -- but a lender can also use a foreclosure judgment to force partition of the lender's share if the mortgaged interest is only a partial interest.

Does Florida's homestead protection apply to jointly owned property?

Florida's homestead exemption (Article X, Section 4) can apply to jointly owned property if the qualifying homeowner occupies it as their principal residence. However, if a spouse signs a mortgage without the other spouse's joinder, the lien may be invalid under F.S. 689.11, which requires both spouses to execute any encumbrance of homestead property. This can be a significant title and lien validity issue.

What happens to an innocent co-owner's share after a foreclosure sale?

In most cases, the foreclosure of one co-owner's interest -- if properly limited to that interest -- terminates that owner's rights and extinguishes the mortgage lien. The purchaser at the foreclosure sale steps into the shoes of the foreclosed co-owner and becomes a new co-owner with the non-defaulting co-owner. This is uncommon in residential foreclosures, where both co-owners typically signed the mortgage, meaning both interests are foreclosed.

Should co-owners consult separate attorneys in a foreclosure?

Yes. If co-owners have different levels of liability -- for example, one signed the mortgage and the other did not -- their legal interests diverge. Separate counsel ensures each owner's rights are independently protected. A single attorney representing both may face a conflict of interest, particularly if one co-owner is considering options (such as bankruptcy or a personal deficiency waiver) that would benefit them at the expense of the other.