To have standing to bring a partition action, you must co-own real property with at least one other person. In fact, a co-owner that owns less than 1% of a piece of real property has standing to file for partition. While this can seem unfair when the majority of co-owners desire to maintain their ownership interests in the property, the law will not force a party to own property with other co-owners.
The right to partition is an absolute right, which can be restricted only by Texas law, written waiver, or a provision in a will. How to win a partition action depends entirely on what you hope to achieve. "Winning" for some clients is getting bought out at a fair price. "Winning" for other clients is getting the real property sold on the open market. Some clients' chief concern is getting reimbursed for contributions made for the benefit of the property. Whatever your goals are, you need an experienced partition attorney fighting for you.
Partition either occurs by sale or a physical division of the acreage. Partition can be "in-kind", meaning that each joint owner will receive their percentage portion of the physical land. Partition can also be accomplished by a judicial sale of the property with each joint owner receiving the monetary value of their interest. The law favors partition in kind over a forced sale, but when it comes to small lots or properties with residential structures, partition in kind is not an option. Partitioning in kind is only an option if real property can be physically divided without materially impairing each divided lots value.
The right to partition is an absolute right. A partition action is a no-fault proceeding, meaning there are usually no defenses that a co-owner can raise. There are exceptions, however, such as a written waiver or a provision in a will.
A partition action should be filed with the assistance of an experienced partition attorney. The cost of attorney fees in a simple, uncontested partition lawsuit could exceed $5,000 due to the amount of paperwork and filings. If the partition action is contested or overly complex, costs can exceed $20,000 to $30,000. Our attorneys may be willing to enter a contingency arrangement wherein their attorney fees would only be paid once the client is paid from the proceeds of the sale of the property. However, this assumes that the property will sell at some point. If the sale does not occur, you may still be liable for the attorney fees incurred.
Like any lawsuit, several factors can affect the trial or settlement of a partition case, including the complexity of the case, number of defendants, breadth of discovery, court schedule, and actions or inactions of the adverse party. A partition action can take 6-12 months on average. If the partition lawsuit involves land that is to be partitioned "in-kind", you can expect 12-24 months before final judgment. In most cases, partition actions are settled out of court. Experienced counsel can help you reach a quick and fair resolution, so you can incur fewer fees and costs.
Legally, no. Realistically, yes. It is highly recommended to hire an experienced real estate attorney that focuses on partition actions to negotiate and execute the partition. Get to know our Texas Partition Attorneys and see if we are the firm you want to advocate for you. Give us a call or come into the office with a list of questions.
We start every partition case by sending a "pre-partition demand letter" to the other co-owners offering either a buyout, an agreed sale on the open market, or other arrangement depending on the circumstances. If an agreement can be reached between the co-owners, a partition lawsuit will not need to be filed, saving the parties a considerable amount of time and money.