Partition is the division of land where property is divided (partition in kind) or sold (partition by sale). It is well known in Texas that co-owners of real estate have an absolute right of partition. Spires v. Hoover, 466 S.W.2d 344, 346 (Tex. Civ. App. 1971), writ refused NRE (July 28, 1971). However, does the absolute right of partition in Texas take precedence over property protected by homestead? This article will address the rights of a co-owner to force partition of a property used as the other co-owner’s homestead.
Homestead property in Texas is generally protected from forced sale, and these protections have long been liberally construed in favor of the homeowner by Texas courts. Vernon’s Ann. Texas Const. Art. 16 Section 50.
One can imagine a situation where one co-owner of real property owns and occupies a separate homestead property and the other co-owner of the real property claims the jointly owned property as his or her homestead. The non-homestead joint owner may one day wish to sell the property in violation of the homestead owner’s desire to continue to own and occupy the property.
The aforementioned example illustrates the absolute right of partition and the state’s strong homestead protection laws being pitted against one another. The general rule in Texas has been that the right to partition is superior to a co-owner’s homestead rights. Cleveland v. Milner, 141 Tex. 120, 127, 170 S.W.2d 472, 476 (Comm'n App. 1943). The absolute right to partition is superior even where a co-owner acquires an interest in a property as a judgement creditor. See Grant v. Clouser, 287 S.W.3d 914, 921 (Tex. App. 2009).
It is clear from Texas cases that the absolute right to partition trumps homestead protections in Texas; however, homestead and partition laws are complex in Texas. It is important to retain a competent real estate lawyer should you have concerns or issues regarding homestead or partition rights.
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