Florida Foreclosure and Partition Actions for Co-Owned Property

October 27, 202612 min readBy Barrett Henry, REALTOR®Last updated: October 27, 2026

Co-owned Florida properties create complex situations when one co-owner defaults on a mortgage, a divorce separates parties who jointly own a home, or heirs inherit a property with an outstanding balance. When co-owners disagree on what to do, Florida law provides two powerful tools: partition actions (Florida Statute 64.011) that can force a court-supervised sale, and the general foreclosure process that can extinguish a borrower's interest without the non-borrowing co-owner's consent.

This guide explains how these tools interact and what Florida co-owners need to know if their jointly owned property is in or approaching foreclosure.

Common Scenarios for Co-Owned Property Facing Foreclosure

Divorce: One spouse moves out and stops contributing to mortgage payments; the other cannot cover the full payment alone. See our guide on divorce and foreclosure in Florida.
Inherited property with multiple heirs: Heirs cannot agree on whether to keep, sell, or rent the property while the mortgage accrues. See our Florida probate and foreclosure guide.
Investment partners: Co-investors in a rental or investment property disagree on whether to sell or struggle to cover the mortgage when the property is vacant.
Unmarried co-buyers: Two unrelated buyers who purchased together and later have a dispute about the property.

How Lenders Foreclose on Co-Owned Florida Property

A lender can only foreclose on the mortgage interest of the borrower who signed the promissory note. If only one co-owner signed the mortgage, the lender can foreclose on that co-owner's fractional ownership interest -- but a non-borrowing co-owner who did not sign the mortgage retains their interest unless they also signed the mortgage.

In practice, most mortgages require all owners of record to sign the mortgage (not necessarily the note) to give the lender a lien on the full property. If a non-borrowing spouse or co-owner is on title, they typically signed the mortgage as a non-borrowing mortgagor. In that case, the foreclosure action names all parties whose interests will be extinguished by the judgment.

See our guide on Florida foreclosure when both spouses are not on the mortgage.

The Partition Action as a Remedy for Disagreeing Co-Owners

When co-owners cannot agree to sell a property facing foreclosure, any co-owner can file a partition action in the Florida circuit court for the county where the property is located. The partition action forces a resolution:

The court evaluates whether the property can be divided physically (partition in kind) -- which is rarely practical for a residential home.
If partition in kind is not feasible, the court orders a partition sale -- a court-supervised auction open to the public or to the co-owners.
Proceeds are distributed after paying the mortgage, liens, and court costs, according to each co-owner's ownership share.

Under the recently enacted Florida Uniform Partition of Heirs Property Act (Florida Statutes Chapter 64, Part I -- effective July 1, 2021), heirs who inherit property through intestate succession or a will have some additional protections, including the right to match any third-party bid at a partition sale.

Option 1: Negotiate a Cooperative Pre-Foreclosure Sale

The best outcome for all co-owners is a cooperative pre-foreclosure sale at market value. A willing seller sale produces a higher price than a court-ordered partition sale, closes faster, and avoids the cost and stress of litigation. If the mortgage is in default, acting quickly matters -- the foreclosure clock is running for all co-owners.

Option 2: One Co-Owner Buys Out the Other

If one co-owner wants to keep the property and can qualify for a refinance, they can buy out the other co-owner's interest. The buyout price is set by agreement or, if disputed, by a partition court. The buying co-owner must qualify for a new mortgage based on their individual income and assets.

Option 3: Cure the Default Through the Servicer

A non-defaulting co-owner can contact the servicer and request to cure the delinquency -- paying the missed payments, fees, and arrears to bring the loan current. The servicer is not required to accept a cure from a non-borrower, but most will accept payment to avoid a contested foreclosure. This preserves the property short-term while co-owners negotiate a longer-term solution.

Option 4: Chapter 13 Bankruptcy as a Pause

If one co-owner files Chapter 13 bankruptcy, the automatic stay (11 U.S.C. 362) immediately stops all foreclosure activity on that co-owner's interest -- and typically on the whole property, since the property is part of the bankruptcy estate. This buys time to negotiate a sale, buyout, or other resolution. See our Chapter 13 bankruptcy to stop foreclosure in Florida.

Free Resources for Florida Co-Owners

Florida Bar Lawyer Referral Service -- (800) 342-8060 for a local real estate or foreclosure attorney.
HUD-Approved Housing Counselors -- hud.gov/counseling or (800) 569-4287.
Barrett Henry, REALTOR -- REMAX Collective -- 23+ years experience with Florida foreclosure situations. Free consultation at (813) 761-0133 or submit your information online.

Call or text Barrett Henry at (813) 761-0133 for a free consultation. No cost, no obligation. Or submit your information online.

Related Resources for Florida Homeowners

This article is provided for general informational purposes only and does not constitute legal or financial advice. Florida foreclosure law and mortgage servicing rules are subject to change. Consult a licensed Florida attorney for advice specific to your situation. Barrett Henry is a licensed Florida real estate broker associate; this content does not create an attorney-client relationship.

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Barrett Henry has 23+ years of real estate experience helping Florida homeowners navigate foreclosure, short sales, and distressed property situations. He serves all 67 Florida counties with offices in Tampa, Largo, and Brandon.

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Frequently Asked Questions

What is a partition action in Florida?

A partition action is a court proceeding under Florida Statute 64.011 that allows a co-owner of property to force the division or sale of jointly owned real estate when co-owners cannot agree on what to do with it. In Florida, any co-owner has the absolute right to petition the circuit court for partition, regardless of how the other co-owners feel. The court can either divide the property physically (partition in kind) -- which is rare for residential properties -- or order a court-supervised sale and divide the net proceeds among co-owners according to their ownership interests.

Can a mortgage lender foreclose if only one co-owner is on the mortgage?

Only the co-owner who signed the mortgage note is personally liable for the mortgage debt. If only one co-owner signed the mortgage, a lender can foreclose on that co-owner's ownership interest, but the non-borrowing co-owner's interest is not directly extinguished unless the non-borrower also signed the mortgage. In Florida, a lender who forecloses on one co-owner's interest may end up owning a fractional interest in the property alongside the non-borrowing co-owner -- a position neither party typically wants. This creates pressure to negotiate a pre-foreclosure sale of the whole property.

Can a co-owner file a partition action to force a sale when the other co-owner wants to keep the home?

Yes. Under Florida Statute 64.011, any co-owner can petition the circuit court for partition without the other co-owner's consent. The right to partition is essentially absolute in Florida -- a court will not deny a partition simply because one co-owner wants to keep the property. The defending co-owner can buy out the petitioning co-owner's interest to avoid the forced sale, but if they cannot reach a buyout agreement, the court will order a sale and distribute proceeds.

What happens to a co-owned Florida home in foreclosure when co-owners disagree?

When one co-owner is in mortgage default and the other is not (e.g., after divorce, inherited property, or a business partnership breakup), the non-defaulting co-owner has a few positions: (1) cure the other co-owner's default through the servicer, (2) negotiate to buy out the defaulting co-owner's interest, (3) sell the property with the other co-owner's agreement to pay off the mortgage, or (4) file a partition action to force a court-supervised sale if agreement is impossible. The non-defaulting co-owner who is not on the mortgage has no obligation to cure but will lose their interest if the property is eventually sold in foreclosure without a remedy.

How does joint tenancy vs. tenancy in common affect Florida foreclosure?

Florida recognizes two forms of co-ownership for residential property: joint tenancy with right of survivorship (JTWROS) and tenancy in common. In a JTWROS, when one co-owner dies their interest passes automatically to the surviving co-owner, but during life each co-owner can mortgage their own share separately. In a tenancy in common, each co-owner holds a divisible share that can be mortgaged, sold, or inherited independently. For foreclosure purposes, a lender can only foreclose on the interest of the borrower who signed the mortgage -- the non-signing co-owner's interest remains even if the lender takes the borrower's interest.

Can inherited co-owners (heirs) be forced to sell through a partition action?

Yes. When a Florida property is inherited by multiple heirs and the heirs cannot agree on whether to keep or sell the property, any heir can file a partition action to force a court-supervised sale. If the inherited property also has an outstanding mortgage, the executor or personal representative must address the mortgage obligation. Florida Statute 733.613 authorizes the personal representative to sell estate property to pay debts, including mortgages, if the estate has insufficient other assets. See our guide on Florida probate and foreclosure at /blog/florida-probate-foreclosure-florida.

What is the cost of a partition action in Florida?

A partition action in Florida circuit court requires filing fees (typically $400 to $500), attorney's fees if you retain counsel, and potential costs for a court-appointed commissioner or referee if the court orders one. Attorney's fees in Florida partition actions are typically apportioned between co-owners out of the sale proceeds under Florida Statute 64.081. The total cost of a contested partition action can range from a few thousand dollars for an uncontested case to $10,000 or more for a heavily litigated one.

How does a pre-foreclosure sale resolve a co-ownership dispute in Florida?

A pre-foreclosure sale is often the most efficient resolution for co-owned property facing foreclosure. If both co-owners agree to sell, the proceeds pay off the mortgage balance and closing costs, and the remaining equity is distributed according to ownership shares. If one co-owner refuses to cooperate, a partition action forces the issue -- but a court-ordered sale typically produces a lower price than a willing voluntary sale, and the litigation costs reduce net proceeds for both parties. Encouraging a cooperative pre-foreclosure sale, even under pressure, usually produces better outcomes for all co-owners than a contested partition.

Florida Foreclosure Guides

Understanding your options is the first step. These guides break down every path available to Florida homeowners.

→How Foreclosure Works in Florida →Ways to Stop a Foreclosure →Loan Modification Options →Short Sale Guide →Foreclosure vs. Short Sale →Lis Pendens Explained →Get a Cash Offer →Sell Before Foreclosure

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