What To Do With Jointly Owned Property?
PARTITION, also known as
THE FORCED SALE OF REAL PROPERTY, also known as
WHAT TO DO WHEN CO-OWNERS OF A HOME CAN’T AGREE ON WHAT TO DO
TABLE OF CONTENTS
- How it Works
- Common Situations
- Options / Can I afford an attorney?
- Common Questions
- Common Law Marriage and its Affect on Partition
- Title Companies
- Prologue / Trivia
I. HOW IT WORKS
Texas law provides each co-owner of real property with an absolute right to have their property partitioned through a forced judicial sale. Texas courts are required to partition property even if only one co-owner makes such a request, and the courts have no wiggle room or discretion – they must order the property partitioned. Partition is sometimes referred to as a “forced sale.” Partition only applies to real property and not personal property. If the property is a typical residential home that cannot be “cut in half,” the court is required to order the home sold and the proceeds divided among the co-owners, pursuant to their percentage of ownership. If the property is in the form of land that can be divided, e.g. thousands of acres of pasture, the court must use experts to determine how to best equitably divide the land between the co-owners, this is known as division “in kind.” Partition law is the same throughout the State of Texas, and I am willing to take the right case in any county located in our great state.
II. COMMON SITUATIONS
Many people find themselves in situations where they co-own property with an individual or a group, but the relationship has deteriorated, resulting in co-owners no longer wishing to live together, work together, socialize or otherwise maintain their shared interests in property. Sometimes this is the result of a failed relationship, a divorce, or the passing of a loved one that didn’t have a will or had a will that was not probated. Often, many years after a death, surviving children, grandchildren, aunts, uncles, and possibly even cousins, nephews and nieces, find themselves co-owning a particular residence. Sometimes, the necessity of partition becomes evident when one co-owner attempts to sell the property, only to find out that the property’s title reveals surprising co-ownership which prohibits the purchase of requisite title insurance (because all necessary parties are not parties to the intended sale), thus completely impeding the sale. In such scenarios, a partition action may be the only way to settle the parties’ co-ownership issues and clear title.
III. WHAT ARE MY OPTIONS AND CAN I AFFORD AN ATTORNEY?
I work on both an hourly and contingent basis. So even if you don’t think you have the money for a partition attorney, I may be willing to enter a contingency arrangement wherein my attorney fees would only be paid once you’re paid. Whether I can agree to a contingency or not will depend on a number of factors including your ownership percentage and the amount of equity in the home. If you have any title work on the property in question, please have it on hand when you call me. In a partition action, the court can consider certain factors to adjust or offset the amount that each co-owner receives. So a co-owner may receive more or less than his or her percentage of ownership after these adjustments and offsets. Some factors the courts consider are: which co-owner paid the taxes, who lived in the residence, and who paid for capital improvements (such as a new roof or a driveway).
IV. COMMON QUESTIONS
Maybe one of the following questions is similar to a situation you are facing.
- Question: “My grandfather passed away twenty years ago, and I just found out that my two siblings and I co-own his house. My siblings won’t talk to me. Can I petition the court to partition the house and receive my share from the sales proceeds?”
Answer: Yes. Even if the other co-owners won’t communicate with you, you can file and serve a partition action against them and the court will order the sale of the house. Even if the co-owners ignore the lawsuit, the court will still order the sale and the proceeds divided.
- Question: “My boyfriend and I were planning to get married and bought a house, but after we bought the house we broke up and I moved out. He lives there and refuses to sell or pay me for my share of the home. Can I petition the court to partition the house so I can receive my share from the sales proceeds?”
Answer: Yes. The court will order the sale of the home and if your boyfriend refuses to leave, he can be evicted. Partition is an absolute right for any one co-owner and it is, or is almost, impossible to stop a partition brought by one co-owner.
- Question: “I entered into a business venture whereby certain other joint venturers and I purchased a piece of property. There is a dispute regarding whether to sell the property or hold on to it. Can I petition the court to partition the property?”
Answer: Possibly, but certain agreements contain prohibitions against partition. I would have to read the relevant contract(s) in order to make a proper assessment.
- Question: “My cousin and I own a house that had been our grandfather’s. We cannot agree on what to do with the house, and I just want the situation to end. Is partition an option for me and my cousin?”
Answer: Yes. If you can’t agree, either one of you may hire an attorney to file a petition to partition the property, and it will be sold with the profits divided between the two of you.
- Question: “I think my home needs to be partitioned, but I have paid all the taxes for years and years and the other co-owners have not! Will I get credit for my tax payments?”
Answer: Yes. The court will take into account all equities, including: (A) who paid taxes, (B) who was living in the home, (C) who received rent, if any, (D) who paid for any significant improvements, and (E) any other factors that should be taken into account in the spirit of equity.
- Question: “If a title company in any Texas county tells you that you can’t sell your home because it is co-owned by someone else, what should you do?”
Answer: Call me! It would be helpful if you can provide me with any of the following information:
- Who co-owns the home?
- What is the home’s value?
- Are there any mortgages or liens on the property?
- Who has been paying the taxes?
- Who has been living in the home?
- What is the rental value of the home?
- Have there been any major expenditures on improvements to the home?
V. COMMON LAW MARRIAGE AND ITS AFFECT ON PARTITION
It deserves noting that if two people in a romantic relationship purchase property, the romance ends, and the parties cannot communicate effectively or decide what to do with the property, a partition may be essential. However, though the parties may not have been married in the traditional sense, if they were common law married, then the property should be divided pursuant to a divorce. A couple becomes married pursuant to common law when the following three factors exist simultaneously: the couple agree to be husband and wife, the couple live together, and the couple holds themselves out to the public as married. Sometimes people do not realize that they are married under the common law – a strange situation to be sure.
VI. TITLE COMPANIES
Many times title companies are the first ones to become aware of surprising co-ownership issues. If you have any possible title-related partition issues, call my firm so we can help you. If you have any possible title-related partition issues, call my firm so we can help you. I am willing and able to handle the right partition actions in any county in Texas (sorry Oklahoma).
VII. PROLOGUE / TRIVIA
Beyonce has a song titled “Partition,” but it should be noted that this song has nothing to do with the partition of real property under Texas law; it merely refers to the window between the front and back of a limousine.
VIII ALLITERATION PLEASE
Phone me, possibly today, to pen your petition to partition property so you can receive your portion of the profits from its sale. Our phone number is 214-522-6202.