You bought the house together four years ago. Both names are on the deed and both are on the mortgage. One of you put up most of the down payment, and the other has covered more of the monthly bills since. Now the relationship is over. One of you has moved out, the other is still living there, and every conversation about what to do with the house ends the same way: "I'm not selling."
If you had been married, a divorce court would divide the property. You were not, and that changes which court you go to, which rules apply, and what arguments count.
Why can't family court divide the house?
Because Florida's rules for dividing property between spouses apply only to spouses. Florida has not recognized new common-law marriages since the late 1960s, however long a couple lives together, and there is no statute dividing the property of unmarried partners. If the couple has children, a family court will decide parenting and support, but it has no authority over the house on that basis. For unmarried co-owners, the house is governed by property law: what the deed says, what the two of you agreed, and what each of you paid. The length of the relationship does not change that. A couple together for fifteen years and a couple together for two are treated the same way.
What does the deed say about who owns what?
Start there. Two people who are not married hold title in one of two ways. As tenants in common, each owns an undivided share that passes to that person's heirs; the deed may state the shares, and when it is silent the law presumes they are equal. As joint tenants with right of survivorship, which the deed must say expressly, each owns an equal share and the survivor takes the whole property if one dies. If only one name is on the deed, the other person has no title at all, and any claim has to rest on a contract or on the argument that the titled owner would be unjustly enriched. Those claims are possible and considerably harder. Read the deed itself, not the closing paperwork or the mortgage, because only the deed determines title.
Can one of you force a sale?
Yes. Any co-owner of Florida real estate may bring a partition action, and when the property is a single home that cannot be divided, the court orders it sold and the proceeds distributed. The other owner's wish to stay is not a defense. Florida gives the occupant no legal right to buy out the other at a set price outside the special rules for inherited property, but in practice a buyout is how most of these cases end: one person refinances the mortgage alone and pays the other for the equity. A partition filing sets the deadline that makes that negotiation serious.
Who gets credit for the down payment?
This is the question people fight about, and the answer depends on how title was taken and what the evidence shows. With a survivorship deed, the shares are equal by definition. With a tenancy in common and a deed that says nothing, equal ownership is presumed. A court may consider evidence that the two of you intended unequal shares, including a large difference in what each contributed to the purchase, but it will also ask whether the larger contribution was meant as a gift to the relationship at the time. Results vary with the facts. A written agreement between the two of you, signed when you bought, controls. Few couples have one.
What about the payments made since?
Those are handled in an accounting that the court takes before the proceeds are distributed. A co-owner who paid more than a proportionate share of the mortgage, property taxes, insurance, and necessary repairs is generally credited for the excess. Improvements are credited by the value they added, not by what they cost. The person who stayed in the house does not automatically owe rent to the one who left, but that changes if the occupant excluded the other, by changing the locks, for example, and the occupant's own claims for credit can be reduced by the value of living there. Bank records decide these questions.
What about the mortgage you both signed?
The lender is not concerned with the breakup. Each person who signed the note owes the lender the entire balance, regardless of who lives in the house or what the two of you agree between yourselves. Moving out does not end the obligation, and neither does signing a deed giving up your interest. A missed payment damages both credit records. Only a refinance, a release approved by the lender, a sale, or a payoff takes a name off the loan. While the dispute continues, the payment should be made on time and a record kept of who made it, because a foreclosure costs both of you far more than the argument is worth. If the person who left stops contributing, the one who stays should keep paying and keep the records, since those payments become credits later.
How do these cases end?
Most settle, usually around a simple formula: an agreed appraisal, less the mortgage balance, adjusted for credits, with a deadline for one person to refinance and pay the other. If the refinance fails, the house is listed with a broker both accept and the proceeds are divided the same way. Where there is no agreement, the court orders the sale, takes the accounting, and apportions attorney's fees and costs between the owners according to their interests. Before any of that, collect the deed, the closing statement from the purchase, the mortgage statements, and the records of what each of you paid, and put a written proposal in front of the other owner. A proposal with numbers attached is harder to ignore than a demand.
Salomon Smith PLLC represents co-owners in partition actions and property disputes across South Florida, including former partners who own a home together. If you are on a deed with someone you are no longer with, call (305) 297-1018 for a free consultation, or learn more about our partition practice.
This article is for general informational purposes only and is not legal advice.