What is Partition?
Partition is the legal term referring to division of real property interests among co-owners (tenants in common). It may be voluntary if all parties agree or involuntary by means of court-ordered action. Our focus in this chapter is on what happens when universal agreement among co-owners cannot be reached.
Disagreement in such cases may be relatively amicable, with one or more co-owners politely refusing to go along, or the co-owners may literally be at each other’s throats. A spouse of a co-owner may decide to oppose the sale of an asset, perhaps preferring to save it for the children rather than liquidate it now. There are numerous reasons for a co-owner to oppose partition, including sheer spite.
Every co-owner of an interest in the property (no matter how small) must agree in order for a voluntary partition to occur. The remedy when agreement cannot be reached is for one or more of the co-owners to seek a court-ordered division by means of a partition suit. It is also possible to file a “friendly” partition action if the parties desire a court decree that ratifies their agreement.
There are two kinds of judicially-ordered partition: partition in kind, which refers to the actual physical division of land by metes and bounds; and a judicially-ordered sale of the property, when partition in kind is not feasible or cannot be achieved fairly and equitably.
Partition is not the appropriate remedy when there is no common title or title is in dispute.
In this discussion, the terms co-owners and joint owners are used interchangeably.
The Right to Partition
Texas law will not force a reluctant joint owner of real property to maintain co-ownership with other persons if he or she does not want to—for any reason. This is part of a broad Texas tradition that no one should be forced to be or remain in business (or jointly-held land ownership) with anyone when they do not want to do so.
The right to a partition is absolute so long as the petitioning party is a joint owner of an interest in the land to be partitioned and has an equal right to possess it along with the other joint owners, subject to any leases. Even the owner of a life estate may compel a partition. Tex. Prop. Code Sec. 23.001. “[Any] joint owner of real property may compel a partition of the interest of the property among the joint owners under Chapter 23 of the Property Code [and Rule 756 et seq. of] the Texas Rules of Civil Procedure.” Wood v. Wiggins, 650 S.W.3d 533 (Tex.App.—Houston [1st Dist.] 2021, pet. denied).
The right to partition may be waived or contracted away by agreement of the parties. If an agreement among the parties to divide the property is reached, a party who later decides to pursue a legal partition action will be estopped from asserting such a right, so long as the other parties affirmatively plead the defense of waiver and estoppel. See Wood, cited above.
The right to partition extends not just to the realty but also the personal property—furniture, fixtures, and equipment—that may be located on the premises (Prop. Code Sec. 23.001).
There is no effective defense to a partition action that is properly brought by someone who qualifies. Spires v. Hoover, 466 S.W. 2d 344 (Tex.App.—El Paso 1971, writ ref’d n.r.e.).
Property Code and Rules of Civil Procedure
Property Code Chapters 23, 23A, and 29, as well as Rules 756-771 of the Rules of Civil Procedure apply to partition actions. Section 23.001 states:
Prop. Code Sec. 23.001. Partition
A joint owner or claimant of real property or an interest in real property or a joint owner of personal property may compel a partition of the interest or the property among the joint owners or claimants under this chapter and the Texas Rules of Civil Procedure.
The owner of a non-possessory interest can neither seek nor oppose a partition action. Dierschke v. Cent. Nat’l Branch of First Nat’l Bank, 876 S.W.2d 377 (Tex.App.—Austin 1994, no writ).
Partition is by definition a dissolution of joint ownership (tenancy in common).
An undivided possessory interest in property is a tenancy in common. . . . Partition dissolves a tenancy in common, vesting in each owner a sole estate in a specific portion of land. . . . Partition of a tenancy in common affects the right to possession, but not the title of the property. . . . Partition [in kind] leaves title as it was, but segregates the rights of owners, locating them in distinct parts of the premises. . . . Partition thus enables cotenants to sever their rights of possession [away from the whole] and thereafter hold exclusive possession of specific parts of property to which all joint owners [previously] had an equal right of possession prior to partition.
See Dierschke, cited above.
No statute of limitations applies to the right of partition. Pate v. Ballard, 634 S.W.3d 957 (Tex.App.—Waco, 2021, no pet.).
TYPES OF PARTITION
Partition in Kind Versus Sale and Division of Proceeds
The real fight in many partition cases is about the pro rata shares of the parties and whether or not the property should be partitioned in kind or sold. Generally speaking, Texas favors partition in kind:
Texas law favors partition in kind over partition by sale, and the burden is on the party seeking a sale to justify it. If the proponent carries his burden and establishes that the property is not susceptible to partition in kind, there must be a partition by sale. . . Which option to apply is simply dependent upon the evidence presented at trial, despite the respective desires of the parties.
See Rodriguez v. Rivas, 573 S.W.3d 447 (Tex.App.—Amarillo 2019, no pet.).
If the property can be divided in kind without materially impairing its value, a sale will not be ordered, but when dividing the land into parcels causes its value to be substantially less than its value when whole, the rights of the owners are substantially prejudiced.
See Cecola v. Ruley, 12 S.W.3d 848, 855 (Tex.App.—Texarkana 2000, no pet.).
There are two potential pathways in seeking a partition:
Partitions may be in kind (meaning that property is divided into separate parcels and each parcel is allotted to a separate owner) or by sale (meaning that property is sold and sale proceeds are divided among the owners).
See Bowman v. Stephens, 569 S.W.3d 210 (Tex.App.—Houston [1st District] 2018, no pet.).
Can the property be partitioned at all as a practical matter?
The threshold question in a partition suit is whether the property is ‘susceptible of partition’ or ‘incapable of partition’ because a ‘fair and equitable division’ cannot be made. . . . The determination of whether an in-kind partition is fair and equitable includes whether the property can be divided in-kind without materially impairing its value. . . . The party seeking partition by sale bears the burden of proving a partition in-kind would not be fair and equitable. . . . A party is not required to show that partition in kind is physically impossible, but that partition by sale would best serve the parties’ interest and restore or preserve the maximum value of the property.
See Carter v. Harvey, 525 S.W.3d 420 (Tex.App.—Fort Worth [2nd Dist.] 2017, no pet.) and Bowman, cited above.
A 500 acre farm may lend itself favorably to partition in kind while a single-family residence on a lot and block may not. One of the recognized factors for determining whether property is capable of being equitably partitioned is whether or not it can be divided into separate tracts without material impairing its value. Champion v. Robinson, 392 S.W.3d 118 (Tex.App.—Texarkana 2012, pet. denied).
PARTITION LITIGATION: FIRST PHASE
The Yturria case outlines the two-step procedure for partition:
The Texas Rules of Civil Procedure provide a two-step procedure for partition of real estate [which may result in two trials and two judgments]. . . . [Rule] 760 provides that, ‘upon the hearing of the cause, the court shall determine the share or interest of each of the joint owners or claimants in the real estate sought to be divided, and all questions of law or equity affecting the title to such land which may arise.’ Rule 761 then provides, in pertinent part, that ‘the court shall determine before entering the decree of partition whether the property, or any part thereof, is susceptible of partition.’ If the property is not partitionable in kind, the trial court orders partition by sale. . . . However, if the court determines the land to be partitionable in kind, it then appoints commissioners to make the [make an equitable] partition and instructs them in its decree concerning the share or interest of each party.
The equities of the specific situation are to be assessed and determined at the initial trial. Yturria v. Kimbro, 921 S.W.2d 338 (Tex.App.—Corpus Christi 1996, no writ).
Venue and Procedure at Initial Trial
Venue is normally in the district court of the county where the property is located (Prop. Code Sec. 23.002(a)). However, in counties where district and county courts have concurrent jurisdiction in title matters (as in Harris County), county courts may also hear partition cases so long as the amount in controversy is within their monetary jurisdiction. Eris v. Giannakopoulos, 369 S.W.3d 618, 620-21 (Tex.App.—Houston [1st Dist.] 2012, pet. dism’d).
Other than the specific requirements contained in Section 23.001 et seq. and Rule 756 et seq., partition cases are governed by the same rules and procedures as other civil cases, including entitlement to a jury trial. All parties with an interest in the property must be joined in the litigation.
Contribution and Reimbursement
Matters of contribution and reimbursement among the joint owners may be considered as matters of equity at the initial trial. Reimbursement claims may arise for payment of taxes, maintenance and repairs, service expenses, and improvements constructed. This area is often the most contested and acrimonious aspect of a partition case.
The right of contribution arises from equitable considerations, and rests upon the principle that where all are equally liable for the payment of a [common] debt or common burden, all are bound equally to contribute to that purpose even though the paying co-tenant at the time of the payment. . . . The duty to preserve the common property rests on all of the tenants in common [joint owners]. Since the care, maintenance, upkeep and preservation of the property rests upon the owners collectively, a [joint owner] who expends common funds for the necessary or proper preservation of the common properties is entitled in a judicial partition of the jointly owned properties to have all such expenditures charged to the [other joint owners] in accordance with their pro-rata ownership.
See Wooley v. West, 391 S.W.2d 157 (Tex.Civ.App.—Tyler 1965, writ ref’d n.r.e.).
The key issue in reimbursement claims in partition cases is whether or not all joint owners were liable for the payment of a common expense or debt (e.g., a mortgage loan against the property). According to Wooley, a right to reimbursement exists only if the expense in question was “necessary or proper.” A right to reimbursement among co-owners does not exist for optional expenses that were voluntarily undertaken. For example, a joint owner who builds stables for the benefit of his horses is probably not entitled to reimbursement, even if the stables add to the value of the land.
PARTITION LITIGATION: SECOND PHASE
Appointment of Commissioners
If it is determined that the property can be fairly and equitably divided into separate tracts, then Rule 761 states that the court shall appoint three or more “competent and disinterested persons” to act as commissioners in devising a plan to divide the land, arrive at an estimated value of each share, and allot the shares among the various owners.
The commissioners are appointed by means of a writ of partition that is issued by the clerk of court and accompanied by the court’s order directing that the property be partitioned. Commissioners are often local lawyers or realtors. The writ of partition may also appoint a surveyor to assist the commissioners.
The commissioners may consider both the value of the property and matters of equity, with the goal of balancing the equities in the specific case. See Yturria, cited above. A commissioners’ report is then prepared and submitted for the court’s approval. Rule 771 allows the parties 30 days to file objections to the report.
If objections are filed, the case goes back to the initial court which must then hold what is effectively a second trial on the objections. The court then enters a judgment that may be appealed as in other civil cases, but the appellate court is directed by Rule 781 to give preference on its docket to an appeal of a partition judgment.
Final Judgment of Partition
If the partition is made in kind, the final judgment will result in the parties obtaining exclusive fee-simple title to their respective tracts along with the power to use or dispose of same as they see fit, without consent or involvement by previous co-owners. The judgment, however, does not create any warranties of title that did not exist before.
If improvements have been made upon the property being partitioned in kind, the improved portion will be allotted to the part owner who made the improvements if this can be done without prejudice to the other owners. Price v. Price, 394 S.W.2d 855 (Tex. Civ. App. 1965). The goal in such matters should be to achieve an equitable result.
If the court orders that property be partitioned by means of sale and distribution of proceeds, then the sale will be conducted by the sheriff or the constable as in other executions upon judgments (Tex. R. Civ. P. 770). If the property is sold at public auction, the executing officer is required to notify the parties of the date and time of sale. Gibson v. Smith, 511 S.W.2d 327, 328 (Tex.App.—Tyler 1974, no writ).
Alternatively, the court may direct that a receiver be appointed to sell the property at private or public sale. Any party to the suit may bid on the property along with other members of the public. The proceeds of the sale are returned to the court for distribution as described in the judgment.
Damages and Costs in a Partition Case
Although a partition action does not generally contemplate monetary damages (except in the event of waste to the property by a co-owner), auxiliary relief such as an accounting for rents and profits may be requested. Contribution and reimbursement issues may also arise as to taxes paid, improvements made, and expenses incurred in connection with the property.
Costs in a partition action are paid by each party pro rata according to the value of that party’s partitioned share. However, the considerable expense and delay involved in meeting the procedural and substantive requirements of a partition suit are a powerful incentive for the parties to settle. If a receiver is appointed, the cost (paid for out of the sales proceeds) can be substantial, even disastrous. A surveyor and appraisers are often employed as well. Additionally, since sheriff sales do not as a rule obtain the best possible price, the parties should carefully consider the advisability of reaching a settlement that avoids court involvement and provides for private sale of the property for better value.
Caveat for Partition of Heirship Property
Texas adheres to the Uniform Partition of Heirs’ Property Act (UPHPA) which makes partition among heirs a special case not subject to the ordinary rules. If at least 20% of the aggregate interest in property is held by persons related to one another, then Property Code Section 23A.003 et seq. will govern any attempt to force a sale.
This law was designed to avoid loss of family property and homestead wealth among poor and minority communities who have been historically less likely to execute wills or do estate planning. The result of this lack of planning may be numerous heirs holding ownership in widely varying percentages, only some of whom might live on the property. Others might be difficult or impossible to locate. Investors have in the past taken advantage of this situation by acquiring a small ownership stake and then asking a court to order partition by sale, resulting in a sheriff’s sale at a less favorable price.
The UPHPA provides an opportunity for heirs to be able to buy out the interest of the cotenant who is attempting to force the sale. If this approach fails, a court may evaluate the circumstances surrounding the property and who resides there in light of relevant sentimental, cultural, and historical factors—and then determine whether partition in kind or partition by sale is the appropriate remedy. If a sale is eventually ordered, the property must be listed with a real estate broker for its fair value, rather than going to a sheriff’s sale which usually results in a fire-sale price. As a result of the UPHPA, investors who pursue forced partition strategies now have more hoops through which to jump and are more likely to wind up paying a sum that is closer to the property’s true worth.
Heirs Versus a Surviving Spouse
What happens when heirs want to effect a partition but there is a surviving spouse in possession of the land? The Texas Constitution protects the spouse:
Texas Constitution, Art. XVI, Sec. 52. Descent and Distribution of Homestead; Restrictions on Partition
On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband of wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having jurisdiction, to use and occupy the same.
See also Estates Code Section 102.005:
Est. Code Sec. 102.005. Prohibitions on Partition of the Homestead
The homestead may not be partitioned among the decedent’s heirs: (1) during the lifetime of the surviving spouse for as long as the surviving spouse elects to use or occupy the property as a homestead; or (2) during the period the guardian of the decedent’s minor children is permitted to use and occupy the homestead under a court order.
In other words, a forced partition may not occur over the objections of a surviving spouse who wishes to continue in undivided possession. Heirs (who generally do not have an immediate right of possession, which is a requirement for proceeding with a partition action) may not dispossess or force a partition against a surviving spouse who does. Manchaca v. Martinez, 136 Tex. 138 (Tex. 1941).
The surviving spouse does have a responsibility to preserve the property for other parties in interest, such as paying interest on existing encumbrances and maintaining the property. Henry v. Brooks, 651 S.W.3d 657 (2022).
Forced Sale Among Heirs for Payment of Taxes
Property Code Section 29.001 et seq. allows an heir who has been paying taxes on heirship property (when the other heirs have not) to force a sale so long as the heir seeking the sale has paid taxes for at least three years in a five-year period, and has done so after demand on the other heirs and without receiving reimbursement.
Information in this article is provided for general informational and educational purposes only and is not offered as legal advice upon which anyone may rely. The law changes. No attorney-client relationship is created by the offering of this article. This firm does not represent you unless and until it is expressly retained in writing to do so. Legal counsel relating to your individual needs and circumstances is advisable before taking any action that has legal consequences. Consult your tax advisor as well.
Copyright © 2024 by David J. Willis. All rights reserved. Mr. Willis is board certified in both residential and commercial real estate law by the Texas Board of Legal Specialization. More information is available at his website, www.LoneStarLandLaw.com.