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RELIABLE COUNSEL FROM A HOUSTON REAL ESTATE LAWYER
A land partition is the legal method to divide property which is jointly owned by more than one person. Certain situations develop which may call for the division of land, and it is often easiest to go through the process of land partition rather than trying to informally decide how to use the land. If you are in a situation where you believe your land will need to be divided and you want to make certain you are not shorted or treated unjustly, contact a Beaumont real estate attorney from Malley Law Firm, PLLC today.
When you come to my firm for assistance, I can help you with:
- Frequently asked questions about land partitions
- Understanding statutes and procedures
- Separating your undivided land interest
- Your rights as a joint owner
GET HELP WITH THE LAND PARTITION PROCESS IN TEXAS FROM START TO FINISH
Through land partition, parcels of land which are co-owned are divided into distinct portions. The end result is to transition property from co-ownership to sole ownership without completely excluding a party. This process can even be used to fairly divide large pieces of communal property that are up for dispute in a divorce.
There are four common forms of land partitions:
- Voluntary partitions: Co-owners divide the property among themselves by exchanging deeds with the help of a property law attorney
- Judicial partitions: One owner files a lawsuit against the other who does not agree with the guidelines of the partition. A judge will have to decide how to fairly divide the land.
- Partition in kind: Involve a piece of property that is easily divided, either through agreements or the physical lay of the land
- Partition by sale: Selling the land as a whole and dividing the proceed among the owners
If you are looking to partition any jointly owned parcel of land, do not hesitate to reach out to a real estate lawyer at the Malley Law Firm, PLLC. My firm has handled many land partition cases and understands that sometimes joint ownership is not the option that benefits you most. My genuine goal is to ensure that you are able to feel comfortable with the resolution of your case and that your best interests are always kept in clear focus.
Contact my Houston office today for your free initial consultation.
Learn More About Land Partitions
FILE A PETITION TO PARTITION
If you and the other joint owner(s) cannot agree on a sale or specific land division, you can file a petition to partition land in the county where the land is located. This means you are filing a legal document at the courthouse requesting the court to divide the land or force a sale of the property. Partition means to divide. You will need to list the names of the joint owners of real estate, the share of interest each joint owner has, and the description of the property to be divided.
SERVICE ON THE JOINT OWNER
Each real estate owner must be served with a citation obtained from the court clerk. A citation is a summons or command to appear and answer the request to divide or sell the land. Texas provides rules for addressing unknown owners.
The parties will appear before the Court for a determination of the ownership share, any questions of law or equity affecting the property. Determination of ownership is essential to making sure all owners affected by the proceedings are involved and protected. Examples of questions of equity would include:
- factual arguments why or why not the property can be divided
- how the property should be divided
- who gets what piece
- access to the property and the improvements, if any
The Court will determine whether the property can be divided equitably or must be sold so each owner can get an equal share.
THE PROPERTY IS CAPABLE OF DIVISION
If the whole or any part can be divided, the Court will appoint 3 commissioners to make the division. The commissioners must proceed to partition. They may call for a survey of the whole and for the partitioned parts. An appraisal may be ordered. The commissioners are required to divide the land equally in value taking into consideration the quantity and advantages of each share. After making the decision, the commissioners will report to the Court the ownership shares and legal descriptions of the property.
THE REAL ESTATE CANNOT BE DIVIDED EQUALLY
The real estate may be incapable of partition. A house for example would be incapable of partition because you cannot cut a house in half. The court will order a receiver appointed to sell the land if the property is incapable of division. A receiver is a person placed in charge of the property and given the responsibility to sell the property and distribute the proceeds
People move, marry, and pass away as time passes. Oftentimes, an owner of real property cannot find another owner who you know may have an ownership interest. Identifying the rightful owners of land can be a problem after people die and proper records are not kept showing who inherited the real property ownership. Texas provides a procedure for addressing these issues after you file a petition to partition the real property. The person who files the partition is called the petitioner or plaintiff.
DUE DILIGENCE AFFIDAVIT
The petitioner or her attorney may make an affidavit swearing under oath that the other owner(s) or their whereabouts are unknown. The Court shall then issue a notice in a publication like a newspaper in an effort to summon the unknown person(s). The affidavit must state the due diligence, which is investigative efforts, made by the Petitioner. If you searched the internet, paid an investigator, called a family member, sent certified letters, or any other efforts, you would need to list those in the affidavit to show the Court your due diligence.
If no one appears after the Court serves the unknown person by publication, the Judge will appoint an attorney ad litem. An attorney ad litem is an attorney appointed to protect the interests of those who have not appeared to defend themselves.
WHAT ARE THE RIGHTS OF A JOINT OWNER/Co-OWNER OF LAND IN TEXAS?
Jointly owning land can sometimes seem like a risky process, but comes with many benefits at the same time. Most spouses and business partners choose to own land jointly to reduce the burden of legal issues or fees.
Texas is a community property state, which means that any assets or property a spouse acquires during the marriage will be considered jointly owned unless there is proof to the contrary. Spouses may wish to separately own property or to specifically provide that their share of the community estate will be divided in a certain manner. If one spouse decides they wish to give their interest in property to someone outside the family or someone who is not an heir, they must be sure to put this intent in writing and must additionally receive the agreement of the other spouse to effectively divide the community property into separate property. This takes skilled legal drafting and it is important to not attempt to draft any of these documents without the guidance of an experienced real estate attorney.
Texas law assumes that two unrelated property owners are “tenants-in-common” which means that each person owns an undivided one-half interest in the property. If there are no further agreements in place, no right of survivorship is assumed, which means that upon the death of one owner, the other owner will not automatically claim an interest in the remaining one-half. Instead, upon the death of one owner, their interest will pass to their heirs according to their will or Texas law.
However, if two non-spouses own property together, they may agree in writing to set up a joint tenancy with the right of survivorship. This protects the owner of property from having the other interest in land pass to a person who either may not be able to handle the property or simply an outside person with who the owner does not want to jointly own property with. It is simple to craft a joint tenancy with the right of survivorship with the assistance of an attorney. It is important that the document specifically states that both owners intend to be “joint owners with rights of survivorship” and “not tenants-in-common.” Upon signature and witness, the intent of both parties is solidified and the document will hold up in court if an heir wishes to contest the interest later down the road. This document is in addition to a warranty deed if the joint tenancy is not crafted at the time of the deeding of property, and therefore it is important to keep copies of all documents and records in case of any future questions.
One important thing to keep in mind is that the surviving owner must survive the deceased owner by at least 120 hours. If this does not happen, then the property will be divided as though the joint tenancy is not in place.
Most of the time, joint ownership of property only becomes an issue upon the death of one owner. Co-owners may provide for the ownership of the property upon their death through wills or living trusts. However, this can get tricky if the other owner did not consent to the gift of property. If no will or trust was put in place, the property will pass through intestacy or may pass to the other co-owner through survivorship clauses.
HOW CAN I SEPARATE MY UNDIVIDED INTEREST IN LAND?
Co-owning a parcel of land is a big responsibility. While sole ownership of land is a responsibility in itself, the co-ownership of property comes with different legal stipulations and questions such as what happens when you die, and whether the property can be divided. Disagreements between co-owners of property can impact the ability to make decisions affecting the land, and may be a good reason to seek the division of property.
CO-OWNERSHIP OF LAND
Land may be owned by a single owner or multiple owners, depending on the situation. Ownership may be between two spouses (which is the most common occurrence), between two business owners, or simply between two strangers who ended up jointly owning property. Co-owners of property may face difficult issues in the future when one person wishes to give their interest in property to another person, either in trust or through a will. The other owner may not object to this gift of property unless they move to separate their undivided property interest. Issues may additionally arise if one co-owner wants to develop one part of the property and the other owner disagrees with this idea.
LAND PARTITIONS IN TEXAS
It is possible to separate an undivided interest in land through what is known as the land partition. Through a partition, co-ownership is converted into sole ownership and therefore one person gives up their common interest for a separate interest. This type of legal process can occur regardless of the number of owners of the property, although keep in mind that you must get the consent of every owner. The ordinary form of land partition is known as “partition in kind,” and each owner will receive a portion of property once it is divided.
If a division of property is not an available option, the owners of the property can always put the property up for sale and divide the proceeds between all owners. This type of partition is known as “partition by sale.” While partition by sale is often used when land cannot be divided, it can also be used when it would be uneconomical to divide the land in separate parts. Some parcels of land are meant to be kept together, and dividing them into separate parts would drastically lower the value.
Texas law favors partition because it leads to peaceful ownership of property rather than forced use of the property by what is known as property in common. Partition solves any would-be problems with joint tenancy and inheritance issues because it neatly slices away any remaining ownership. It additionally ends all restraints own ownership which were a part of the tenancy-in-common or joint tenancy.
WHAT IS A LAND PARTITION?
A land partition is the division of real property held jointly or in common by two or more persons into individually owned interests.
A land partition, whether voluntary or judicial, is not a means for acquiring title; rather, it is the manner by which co-owners may seek and acquire the right to exclusive ownership and possession of a part of the jointly owned property that, before partition, was owned by all and each owner had an equal right to use and possess the whole. The goal in a land partition is to make sure that the property is divided fairly among the owners.
VOLUNTARY PARTITION VS. JUDICIAL PARTITION
Land may be partitioned either voluntarily or judicially.
A voluntary partition occurs when the co-owners mutually consent to divide the property themselves. Each co-owner becomes the sole owner of the portion of the property he acquires. Once the property is partitioned, a former co-owner ceases to have an undivided interest in the whole. Co-owners can also voluntarily provide for the sale of the property and divide the proceeds. Insofar as all co-owners agree to it, a voluntary partition will be legally effective.
A judicial partition is the legal process by which land is divided and apportioned equitably among co-owners. When co-owners cannot agree on the division or value of the shared property, the parties may file an original petition to compel partition and request the court to appoint commissioners to partition the property fairly and equitably. A partition may still be made, despite opposition or disagreement among the co-owners.
WHAT IS AN UNDIVIDED INTEREST?
An undivided interest is the non-exclusive right to use and possess the property as a whole.
WHAT IS A PARTITION ACTION?
Partition rights are well established in Texas. A partition action is a proceeding by which joint or co-owners of property cause it to be either divided into as many shares as there are owners, or, if that cannot be done equitably, to be sold for the best obtainable price and the proceeds distributed among the owners in equal shares. A partition may be done judicially or voluntarily, as stated above.
Partition concerns possession of land, not title to land. See Barham v. McGraw, 342 S.W.3d 716, 719 (Tex. App.—Amarillo 2011, pet. filed). The right to partition has been characterized as “absolute.” Mayes v. Stewart, 11 S.W.3d 440, 457 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). If the property cannot be partitioned in kind (meaning physically divided up into equal parts by metes and bounds), there must be a partition by sale. Carter v. Charles, 853 S.W.2d 667, 671 (Tex. App.—Houston [14th Dist.] 1993).
HOW DO I SEPARATE WHAT I OWN?
You can separate what you own by initiating an action to partition land.
Texas Property Code § 23.001 et seq. provides the statutory authority for partitioning property. The Texas Property Code provides that a joint owner or claimant of real property or an interest in real property may compel a partition of the interest or the property among the joint owners or claimants.
Texas Rules of Civil Procedure 756-771 provides the procedure that a claimant must use to compel a partition.
WHEN IS A PARTITION ACTION ALLOWED?
In the absence of a statute to the contrary, a party, in order to be entitled to compel partition, must not only own an interest in the land, but he must be entitled to possession of a portion of that land.
A suit for partition is maintainable wherever property it owned by two or more persons jointly or in common. Tex. Rev. Civ. Stat. Ann. Art. 6082 permits joint owners of real estate whether held in fee or by lease or otherwise, to compel a partition thereof between the other joint owners.
WHEN IS A FORCED PARTITION ALLOWED?
There are three necessary statutory requisites to a forced partition: (1) The partitioners must be joint owners (2) of the land, or any interest therein; and (3) the parties seeking the partition must have an equal right to possession with the other joint owners.
WHAT IS INVOLVED IN A PARTITION ACTION?
All property held in co-tenancy is subject to partition. Every co-tenant may demand partition as a matter of right. Every person having an interest in the property, who is not the plaintiff in the partition suit, must be made a defendant in the suit. The partition suit must be filed in the county in which the real estate is located. In order to initiate a partition suit, the petition must describe the property and the respective interests of the co-owners. Texas uses a general form called the “Plaintiff’s Original Petition for Partition.”
As a judicial proceeding, partition was available at common law under the province of the equity courts. (18-284 Dorsaneo, Texas Litigation Guide, § 284.01). To compel a judicial partition, the parties seeking to have their interests isolated from other owners must institute an action in a district court, joining as plaintiffs or naming as defendants all parties who own or claim to own an interest in the subject property. Burkitt v. Broyles, 317 S.W.2d 762, 764 (Tex. Civ. App.—Houston 1958, writ ref’d n.r.e.).
WHAT IF THE LAND CANNOT BE DIVIDED FAIRLY?
If the land cannot be divided fairly or equitably (that is, the land cannot be partitioned in kind), then a party may seek a partition by sale. The Sheriff’s Constable typically conducts sales of property. Alternatively, the court may direct that a receiver be appointed to sell the property at a private or public sale. Following a partition by sale, the proceeds of the sale are then distributed by the court. Note that if the property is sold at public auction, the sheriff is required to notify the parties of the date and time of sale. Gibson v. Smith, 511 S.W.2d 327, 328 (Civ. App.—Tyler 1974, no writ). Any party to the suit may bid on the property along with other members of the public.
WILL THE PROPERTY BE SURVEYED?
It depends, but most often, yes. The court may, should it be deemed necessary, appoint a surveyor to assist the commissioners in making the partition. The co-owners will share the cost of a survey, in most cases. While surveys can be expensive, it is one of the most useful ways to ensure a partition in kind is done fairly and equitably.
WHAT ABOUT THE MINERAL RIGHTS?
The right to partition land includes the right to partition the oil, gas, and minerals, as well as the surface estate. The law favors a partition in kind over a partition by sale. Therefore, if a fair and equitable partition can be accomplished, the court will decree it. Whether the mineral estate can be fairly and equitably partitioned in kind is a question of fact
WHO VALUES THE LAND?
If the parties cannot come to an agreement, a survey of the land is conducted. Following the survey, land commissioners will value the land and partition in kind among the parties in a fair and equitable manner. The commissioners will then send the commissioner’s report to the court for review.
CAN I SELL MY PART?
Once land has been partitioned, and the court has issued a final judgment, an owner may sell his own partitioned property.
CAN I GET ACCESS TO MY PART? DO I HAVE TO GIVE ACCESS?
Even after land has been partitioned, property owners must allow access or grant easements.