What Is A Partition? R L WILSON LAW FIRM - San Antonio Real Estate Lawyers. Trey Wilson Attorney

San Antonio Real Estate Attorney Trey Wilson provides a detailed description of the Partition process in Texas.

When Joint Owners of Real Estate can no longer co-exist, they may invoke the power of the Court to sever ownership.

Texas law will not force a reluctant owner of real property to maintain joint ownership. Instead, any owner “may compel a partition of the property among all joint owners.”

This remedy is known as “Partition” and is governed by Chapter 23 of the Texas Property Code.

Partitions may occur by agreement or through a lawsuit filed in the district court of the county “in which any part of the property is located.”

Courts divide co-owned land in two ways: By ordering a sale with the proceeds divided amongst the owners according to their ownership interests, or “in-Kind.”

Under “In Kind” partition, the property is divided into separate parcels with each allotted to a separate owner. The objective for “In Kind” partitions is achieving a “fair and equitable” division.

Whether a piece of land can fairly be partitioned in kind is a fact question, and Texas law favors partition in kind over partition by sale. Therefore, the burden of proof falls on the party opposing partitioning in kind and seeking a partition by sale.

If the property can be divided in kind without materially impairing its value, a sale will not be ordered.

The Texas “Rules of Civil Procedure create a two-stage process for the partition of real estate.” In the first stage, the court determines whether the property is susceptible to partition in kind, decides the fractional interest of each joint owner, resolves all questions of law or equity affecting title, and determines the value of improvements to provide for the adjustment of equities between the parties”.

If the court determines that the whole, or any part of the property is susceptible of partition, then the court shall appoint three or more persons as commissioners to make the partition.

“In the second stage, the commissioners consider the property’s characteristics and evaluate considerations for dividing the property” seeking to retain the partitioned tracts’ highest value.”

A majority of the Commissioners will partition the real estate into as many shares as there are persons entitled to ownership, giving due regard 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. The commissioners then proceed by lot to set apart to each of the parties entitled one of the shares.

Once the commissioners have made their decision, they submit a report, under oath, to the trial court, stating their recommendations for the actual property partition.

Ultimately, the Court enters a Judgement of Partition.