Partition is the division of real property among joint owners and is an absolute right in the state of Texas. Texas law will not force one owner to maintain a joint ownership if he or she wishes not to for any reason. In this case, a joint owner may compel a partition in kind or a partition by sale.
In addition, in 2017, Texas adopted what is known as the Uniform Partition of Heirs’ Property Act (UPHPA) to protect the rights of property owners who are related and received the property intestate. The UPHPA is codified in the Texas Property Code, Title 4, Chapter 23A.
The UPHPA allows co-owners in possession of heirs’ property to partition the property by sale if it cannot be partitioned in kind. A partition by sale results when property cannot be easily divided into equal parts. Property is considered heirs’ property when the follow criteria are met: (1) the co-owners must be related and (2) the co-owners own 20% or more of the property as co-tenants. When these criteria are met, Property Code Section 23A.003 will govern an attempted forced sale.
Once a co-owner initiates a partition by sale action, the court is now obligated to commence an appraisal for the fair market value of the property. If there is no objection to the appraisal, the court conducts a hearing to determine the FMV of the appraisal, and the remaining co-owners who did not petition for the partition may purchase a pro rata share of the initiating co-owner’s interest in the property. It should be noted that if the remaining co-owners do not try to purchase the property, the initiating co-owner may purchase the remaining shares on the same terms.
The Uniform Partition of Heirs’ Property Act is a still fairly new law in Texas, and there is not much case law on the books yet. It is important that a competent real estate attorney be retained if one is considering moving forward with a partition regarding heirs’ property.
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