Real Estate Partitions

CO-OWNERS OF REAL ESTATE CAN SEPARATE FROM JOINT OWNERSHIP 

Texas law will not force reluctant joint owners of real property (referred to as “tenants in common” or “covenants”) to maintain joint ownership. Instead, any owner of real property held in tenancy in common “may compel a partition of the interest or the property among the joint owners or claimants.” TEX. PROP. CODE § 23.001.

In Texas, the right to partition is absolute, and there is no valid legal defense to a partition action.

The process for partitioning real property is nuanced, and the specific process for partition is influenced by a variety of factors such as:

• The relationship of the joint owners;
• Whether the joint owners of the property are heirs;
• The type and character of property being partitioned;
• Whether the property is susceptible to physical division into separate tracts without materially impairing its value; and
• Whether a sale of the property (as opposed to division) would best serve the parties’ interest and restore or preserve the maximum value of the property.

VENUE AND JURISDICTION FOR PARTITION SUIT

A  joint owner or a claimant of real property or an interest in real property may bring an action to partition the property or interest in a district court of a county in which any part of the property is located. See TEX. PROP. CODE § 23.002(a).

TWO-STEP PROCESS; TWO JUDGMENTS

Unlike other proceedings, a partition suit is a two-step process resulting in two orders, each of which is considered final for purposes of appeal.

STEP ONE.

In the first order, sometimes referred to as the “interlocutory” partition order, the trial court determines (1) the interests of all joint owners or claimants, (2) all questions of law affecting title, and (3) if the property is susceptible to partition.

If the trial court determines the property is susceptible to partition, it will appoint commissioners and give them appropriate instructions for determining how to divide the property. Issues determined by the partition order must be challenged following its entry; they cannot be attacked collaterally after the entry of a later order or judgment.

Retaining the highest value of the partitioned tracts is among the primary objectives of any partition exercise. See  Yturria v. Kimbro, 921 S.W.2d 338, 343 (Tex. App.—Corpus Christi 1996, no writ).

STEP TWO.

After completing their work, the commissioners submit a report to the trial court describing their proposed division of the property. In the second order, sometimes referred to as the “final decree,” the trial court approves the commissioners’ report and sets aside to the parties their respective shares.

See Fry Sons Ranch, Inc. v. Fry (“Fry II”), No. 03-21-00289-CV, 2021 Tex. App. LEXIS 6859, at *2 (Tex. App.—Austin Aug. 20, 2021, pet. denied) (mem. op.) (internal citations omitted); see Griffin v. Wolfe, 610 S.W.2d 466, 466 (Tex. 1980) (“A partition case, unlike other proceedings, has two final judgments and the first one is appealable as a final judgment.”); Jimmie Luecke Children P’ship, Ltd. v. Pruncutz, No. 03-10-00840-CV, 2013 Tex. App. LEXIS 10362, at *6 (Tex. App.—Austin Aug. 16, 2013, no pet.) (mem. op.) (summarizing partition process).]

“PLAYERS” IN PARTITION CASES

The participants in Partition suits  typically include the district court Judge, the partition Commissioners, a surveyor and an appraiser. Each of these players has a distinct role in the process.

WHO ARE THE COMMISSIONERS?

THE COMMISSIONERS’ JOB

Texas Rule of Civil Procedure 768 commands the Commissioners to propose a division of the Property and render a report:

The commissioners shall divide the real estate to be partitioned into as many shares as there are
persons entitled thereto, as determined by the court, each share to contain one or more tracts or
parcels, as the commissioners may think proper, having due regard in the division to the situation,
quantity and advantages of each share, so that the shares may be equal in value, as nearly as may
be, in proportion to the respective interests of the parties entitled. The commissioners shall then
proceed by lot to set apart to each of the parties entitled one of said shares, determined by the
decrees of the court.

Rule 769 governs the form and contents of the Commissioners’ Report:

When the commissioners have completed the partition, they shall report the same in writing and under oath to the court, which report shall show:
(a) The property divided, describing the same.
(b) The several tracts or parcels into which the same was divided by them, describing
each particularly.
(c) The number of shares and the land which constitutes each share, and the estimated
value of each share.
(d) The allotment of each share.
(e) The report shall be accompanied by such field notes and maps as may be necessary
to make the same intelligible.

COURT ACTION ON REPORT OF COMMISSIONERS

RIGHT TO OBJECT TO COMMISSIONERS’ REPORT

Texas Rule of Civil Procedure 771 provides as follows:

Either party to the suit may file objections to any report of the commissioners in partition within thirty days of the date the report is filed, and in such case a trial of the issues thereon shall be had as in other cases. If the report be found to be erroneous in any material respect, or unequal and unjust, the same shall be rejected, and other commissioners shall be appointed by the Court, and the same proceedings had as in the first instance.

EFFECT OF JUDGMENT OF PARTITION

(a) A person allotted a share of or an interest in real property in a partition action holds the property or interest in severalty under the conditions and covenants that applied to the property prior to the partition.

(b) A court decree confirming a report of commissioners in partition of real property gives a recipient of an interest in the property a title equivalent to a conveyance of the interest by a warranty deed from the other parties in the action.

(c) Except as provided by chapter 23 of the Texas Property Code, a partition of real property does not affect a right in the property.

TEX. PROP. CODE § 23.004.