Co-ownership of a property is possible and often benefits those owners, particularly when they share the property without complaint or dispute. Not all co-ownership goes smoothly, however. If the relationship among co-owners changes, and one or more of the owners is no longer interested in co-ownership, Texas law provides an option for dividing up, or partitioning, the land that is co-owned, a process fully outlined in Chapter 23 of The Texas Property Code.
When to File
Texas laws emphasize that dissolving co-ownership of real property requires only the desire of one of the co-owners to do so. The court seeks only the fair and equitable division of the property, or any part of the property, instead of addressing whether or not the co-ownership should be dissolved. Property Code Section 23.001states that, “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.” For more information about partitioning property specifically related to homestead property, please read Partition of Homestead Property in Texas.
How to File
Those seeking a judicial division of property must file a petition in the county where the property is located. Tex. Prop. Code Ann. § 23.002(a); Tex. Civ. Prac. & Rem. Code Ann. § 15.011. The petition must include the names and addresses of all parties with an interest in the property, identifying each as either a plaintiff or a defendant. Failing to do so leads to a partition decree that is unenforceable. Burkitt v. Broyles, 317 S.W.2d 762, 764 (Tex. Civ. App.—Houston 1958, writ ref' d n.r.e.); Partin v. Holden, 663 S.W.2d 883, 885–886 (Tex. App.—Austin 1983, no writ). The petition should also identify the share of property for each of the owners as well as a complete legal description of the property and its estimated value. Tex. R. Civ. P. 756(a-c).
Results of Filing
Once the petition is filed, the court determines the share of each owner. It also addresses any issues regarding equity and law concerning title to the property. The court then decides either to partition in kind, which means that the property is divided and allocated to the owners, or it decides to partition by sale, which means the property is sold and the proceeds are divided among owners. If the court chooses to partition in kind, it agrees that the land is subject to division and enters a decree in favor of partitioning. This decree includes the shares of each owner and the legal descriptions of each parcel, assuming the property can be equitably divided among owners. Tex. R. Civ. P. 761. If, however, the court determines that the property cannot be equitably divided, it will order the sale of the property and will partition the proceeds of that sale to the owners. Tex. R. Civ. 770.
In general, Texas courts favor partition in kind. If a claimant prefers partition by sale, that party has the burden of proving why partition by sale is preferable to partition in kind. Rodriguez v. Rivas, 573 S.W.3d 447, 451 (Tex. App.—Amarillo 2019); Cecola v. Ruley, 12 S.W.3d 848, 854 (Tex. App.—Texarkana 2000, no pet.).
Co-ownership of property makes sense in certain instances, but for any number of reasons owners may want to change or dissolve co-ownership. Seeking help from a lawyer familiar with real estate law will offer the best options when trying to navigate the complexities of a petition to partition property.
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