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Land Partition – FAQs
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.