Full question:
We, 3 Brothers, inherited my Dads duplex when he died. It was to be sold and divided. My oldest Brother was the Executor, but he did not do it. They wanted to wait until my Mother died. I had them all sign a contract that we would sell the duplex when my mother died. When she died, my Brother listed for a half year until last November because of the housing market dropped. The other 2 brothers, myself included, still want it to be listed at market(whatever it is) and sold. We want to Force A sale. Can you help us with that?
- Category: Real Property
- Subcategory: Partition
- Date:
- State: Texas
Answer:
A partition action is a court action to divide property. An action for partition usually arises when a property is jointly owned and there is a dispute as to how to divide property, or in a dispute as to whether property should be sold. One co-owner of real property can file to get a court order requiring the sale of the property and division of the profits, or division of the land between the co-owners, which is often a practical impossibility. Normally, a partition order provides for an appraisal of the total property, which sets the price for one of the parties to buy out the other's half. The partition statutes govern actions for partition of real property, but the partition statutes do not apply to property divisions under the Family Law Act or in other types of cases specifically governed by other statutes. A partition action may be initiated and maintained by any of a co-owner of personal property; an owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates. Generally, a partition action may be maintained only by a person having the interest in the property, however, an equitable interest, is sufficient to support a partition action. A 'partition in kind' refers to land partitioned conveniently and equitably between or among the owners. Alternatively, it must be sold as a single parcel and the proceeds divided among the owners. If two or more people who own a property as tenants in common or if people who are not married to each other own a property as joint tenants with right of survivorship develop a dispute concerning the property, any owner may bring a partition action with the court to get the property divided between owners. While the lawsuit is pending, all owners will have equal access to and interest in the property. This arrangement applies regardless of whether the mortgage is in one owner's name or the name of all owners.
The following are Texas statutes:
§ 23.001 PROP. Partition
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.
§ 23.002 PROP. Venue and Jurisdiction
(a) A joint owner or a claimant of real property or an interest
in real property may bring an action to partition the property or
interest in a district court of a county in which any part of the
property is located.
(b) A joint owner of personal property must bring an action to
partition the property in a court that has jurisdiction over the value of
the property.
§ 23.003 PROP. Effect on Future Interests
A partition of real property involving an owner of a life estate or an
estate for years and other owners of equal or greater estate does not
prejudice the rights of an owner of a reversion or remainder interest.
§ 23.004 PROP. Effect of Partition
(a) A person allotted a share of or an interest in real property in a
partition action holds the property or interest in severalty under the
conditions and covenants that applied to the property prior to the
partition.
(b) A court decree confirming a report of commissioners in partition of
real property gives a recipient of an interest in the property a
title equivalent to a conveyance of the interest by a warranty deed from the
other parties in the action.
(c) Except as provided by this chapter, a partition of real property
does not affect a right in the property.
§ 23.005 PROP. Fees
The judge of a court that hears an action to partition real property
shall examine the report of the commissioners appointed to partition the
property and shall determine from the report and from evidence submitted
by the parties the complexity and difficulty of making the partition. The
court shall then award the commissioners, and any surveyor appointed by
the court or retained by the commissioners, a reasonable fee for the
services rendered. The fees awarded shall be taxed and collected as costs
of court in the same manner as the other costs in the action
§ 23.006 PROP. Access Easement for Partitioned Property
(a) Unless waived by the parties in an action to partition property
under this chapter, the commissioners appointed to partition property
shall grant a nonexclusive access easement on a tract of partitioned
property for the purpose of providing reasonable ingress to and egress
from an adjoining partitioned tract that does not have a means of access
through a public road or an existing easement appurtenant to the tract.
The order granting the access easement shall contain a legal description
of the easement.
(b) Unless waived by the parties in writing in a private partition
agreement, the property owner of a partitioned tract that has a means of
access through a public road or an existing easement appurtenant to the
tract shall grant in the private partition agreement a nonexclusive
access easement on the owner's partitioned tract for the purpose of
providing reasonable ingress to and egress from an adjoining partitioned
tract that does not have a means of access through a public road or an
existing easement appurtenant to the tract.
(c) The access easement may not be a width greater than a width
prescribed by a municipality or county for a right-of-way on a street or
road. The access easement route must be the shortest route to the
adjoining tract that:
(1) causes the least amount of damage to the tract subject to the
easement; and
(2) is located the greatest reasonable distance from the primary
residence and related improvements located on the tract subject to the
easement.
(d) The adjoining tract owner who is granted an access easement under
this section shall maintain the easement and keep the easement open for
public use.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
