Three people owned a single-family home in equal shares, and after a trial the judge refused to order it sold. Instead the judge ordered one owner to take out a reverse mortgage for the maximum available amount, split the net proceeds between the other two, and sign a deed keeping an “enhanced life estate” for herself. The Third District Court of Appeal reversed in Dominguez v. Suarez, No. 3D25-0823, in a substituted opinion issued October 21, 2026 on rehearing, and sent the case back with instructions to order partition by sale.
The facts
The parties each own an undivided one-third interest in the home, under a 2013 deed, as joint tenants with rights of survivorship. The house is indivisible. After a non-jury trial, the trial court denied partition and entered the reverse mortgage and life estate arrangement. The Third District noted that the order “contained no findings of manifest injustice, fraud or oppression.”
Partition is a matter of right
Judge Gordo wrote that “[p]artition is a matter of right for co-owners of indivisible property,” citing section 64.051, Florida Statutes, and prior Third and Fifth District cases. A trial court does have discretion to refuse partition, but the Florida Supreme Court said in Condrey v. Condrey, 92 So. 2d 423 (Fla. 1957), that discretion should be exercised “only in extreme cases or where manifest injustice, fraud or oppression will result if partition is granted.” The Third District held the co-owner who opposed partition “failed to establish the extreme circumstances, manifest injustice, fraud or oppression required.”
A remedy nobody asked for
The court also held that the reverse mortgage and life estate remedy “was never requested in any pleading.” It cited Butler v. Brown, 338 So. 3d 392 (Fla. 5th DCA 2022), for the rule that granting unrequested relief is an abuse of discretion and reversible error. Quoting Morrison v. Smolarick, 334 So. 3d 675 (Fla. 2d DCA 2022), the court noted that partition ends one of two ways: the property is divided, or, if it cannot be divided, it is sold and the funds are divided.
The accounting
The trial court’s order also “failed to take into account appreciation of the property and proportionate expenses.” Citing Fernandez v. Marrero, 282 So. 3d 928 (Fla. 3d DCA 2019), the court said a partition proceeding requires an accounting to determine whether each co-tenant has paid a proportionate share of the property’s expenses and to adjust the accounts.
The result
Because the parties agreed each owns a one-third interest and that the property cannot be divided in kind without prejudice, which the court called “the only prerequisites for partition by sale,” the record established the statutory prerequisites. The court reversed and remanded with instructions to order partition by sale, after which the trial court may conduct an accounting.
Who decided it
Judge Gordo wrote the opinion for a panel of Judges Gordo, Lobree and Gooden. The opinion was issued on motion for rehearing and clarification, which the court denied while withdrawing and replacing its earlier opinion.
The opinion is not final until disposition of any timely rehearing motion.
Read the opinion (PDF): Download the opinion (PDF)
Source: Dominguez v. Suarez, No. 3D25-0823 (Fla. 3d DCA Oct. 21, 2026). This article is general information, not legal advice.