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Partition Actions in Texas for Inherited Property

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A partition action in Texas is a legal action to divide real property among joint owners.  Different rules apply to partition actions in Texas for inherited property.

What Are Partition Rights In Texas?

In Texas, the general rule is that the right to partition real property is absolute if you are a joint owner and have an equal possessory right to the land.  A partition action is generally initiated by an owner or owners who do not wish to own the real property with the co-owners.  A partition action can be in kind (meaning the land is actually divided between the owners) or result in a court-ordered sale (the property is sold).

Section 23.001 of the Texas Property Code states:

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.

The partition action must be brought in a district court of a county in which any part of the property is located.

What Are My Partition Rights For Inherited Real Property?

In 2017 Texas adopted the Uniform Partition of Heirs’ Property Act, available here.  Implementation of the Act is found in Chapter 23A of the Texas Property Code.

The Act includes different rules for partition in cases where heirs inherit property.  If the court determines that the property at issue is heirs’ property, then the property must be partitioned to the Act.

What is Heirs’ Property?

Heirs’ property is defined as follows:

 “Heirs’ property” means real property held in tenancy in common that satisfies all of the following requirements as of the filing of a partition action

(A) there is no agreement in a record binding all the cotenants that governs the partition of the property;

(B) one or more of the cotenants acquired title from a relative, whether living or deceased; and

(C) any of the following applies:

(i) 20 percent or more of the interests are held by cotenants who are relatives;

(ii) 20 percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or

(iii) 20 percent or more of the cotenants are relatives.

 

The Partition of Heirs’ Property Is Treated Differently

The Act was adopted to protect family property.  Often when no will existed, many heirs would inherit real property under the Texas laws of intestacy, in different percentages.  Investors would swoop in, acquire a small ownership stake, and then force a judicial partition.  This would result in long-held family property being lost.

The Act does not prevent partition in the case of heirs’ property, but it does give heirs the opportunity to buy out the interest of the owner trying to force the sale.

The Act also requires the court to evaluate certain factors for the appropriateness of a partition in kind, including:

  • Whether the heirs’ property can be practicably divided;
  • Whether the aggregate fair market value of the parcels would be materially less than the value as a whole;
  • The collective duration of ownership or possession of the property by a cotenant and one or more predecessors in title or predecessors in possession to the cotenant who are or were relatives of the cotenant or each other;
  • A cotenant’s sentimental attachment to the property;
  • The lawful use being made of the property by a cotenant; and,
  • Prorata contributions to property expenses.

If the judicial sale of heirs’ property is ordered, a real estate broker must be used for a fair value sale, as opposed to a sheriff’s sale.  This requirement generally results in a higher sale price for the property, and is favorable to heirs involved in partition actions in Texas for inherited property.

 

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