McAllen Partition and Heirs’ Property Attorney

When co-owners cannot agree

Land ends up jointly owned in ordinary ways. Parents die and four children inherit undivided interests. A couple buys property together and separates. A sibling buys out one heir but not the others. An estate is never probated and, two generations later, thirty people own fractions of a tract nobody can sell.

Texas law does not force cotenants to stay tied to each other. Any co-owner has the right to compel a partition — to convert an undivided fractional interest into either a separate parcel or a share of the proceeds. That right does not depend on the other owners’ consent, on how small your interest is, or on how long the arrangement has existed.

Davis Law, P.C. brings and defends partition suits in Hidalgo County and throughout the Rio Grande Valley.

How a Texas partition suit works

Partition is governed by Property Code Chapter 23 and Texas Rules of Civil Procedure 756 through 771. A partition suit proceeds in two distinct stages, which is the single most important thing for a co-owner to understand about the process.

Stage one — the interlocutory decree. The court determines who owns the property, the fraction each owner holds, whether the property is susceptible to partition in kind (physical division), and the share to which each owner is entitled. This is where title questions, claims for reimbursement of taxes, insurance, mortgage payments, and improvements, and claims for the rental value of exclusive occupancy get decided.

Stage two — execution. If the property can be fairly divided in kind, the court appoints commissioners — three or more disinterested landowners of the county — who go to the property, divide it, and report back. Objections to the report are heard by the court. If the property cannot be fairly divided in kind, the court orders a sale and the proceeds are divided in the proven shares.

Texas law favors partition in kind. Partition by sale is ordered only where in-kind division is not fairly practicable — which, for a single house on a city lot, it usually is not. For acreage, in-kind partition is frequently workable and often produces a far better result for everyone than a forced sale.

Heirs’ property has its own statute

Where the co-owners are family and the interests came down through inheritance, a separate statute applies. Property Code Chapter 23A, the Uniform Partition of Heirs’ Property Act, effective September 1, 2017, was enacted to stop a specific abuse: an outside buyer acquiring one small fractional interest from one heir, then forcing a sale of the entire tract at auction for a fraction of its value.

Chapter 23A applies where there is no binding agreement governing partition, some of the cotenants acquired their interests from a relative, and one of the following is true — 20 percent or more of the interests are held by relatives, 20 percent or more are held by someone who acquired from a relative, or 20 percent or more of the cotenants are relatives.

When it applies, the procedure changes substantially:

1. Court-ordered appraisal (§ 23A.006). Rather than accepting whatever a sale brings, the court determines fair market value — ordinarily by appointing a disinterested appraiser to value the entire property as if owned by a single owner in fee simple. Parties have 30 days to object, and the court holds a hearing on value.
2. Cotenant buyout (§ 23A.007). Any cotenant who did not request partition by sale may elect to buy the interests of all cotenants who did. The election must be made within 45 days after notice of the value determination. Where multiple cotenants elect, the interests are apportioned among them. This is the provision that keeps family land in the family.
3. Partition in kind is preferred (§§ 23A.008–23A.009). If no cotenant buys out the selling interests, the court must consider in-kind division before a sale, weighing factors including whether the property can practicably be divided, the harm to cotenants if it cannot, each cotenant’s sentimental or ancestral attachment, and the degree to which cotenants have contributed to taxes and maintenance.
4. Open-market sale is preferred (§ 23A.010). If a sale is ordered, it must ordinarily be an open-market sale through a broker at a price not less than the court-determined value — not a courthouse auction. Sealed bids or auction are used only where the court finds that method would be more economically advantageous.

These are two separate preferences, and both matter: in-kind over sale, and open-market over auction. Together they are worth a great deal of money to a family that would otherwise have watched the land go for a third of its value on the courthouse steps.

Reimbursement and accounting claims

Partition is rarely only about dividing dirt. Cotenants routinely have claims against one another that are resolved in the same suit:

• Taxes, insurance, and mortgage payments advanced by one cotenant for the benefit of all
• Necessary repairs and improvements — reimbursement is generally measured by the enhancement in value, not the amount spent
• Rents received by a cotenant from third parties, which must be accounted for in proportion to the interests
• Exclusive occupancy. A cotenant is entitled to possess the whole and generally owes nothing for occupying it — unless the occupying cotenant has ousted the others, which requires an unequivocal repudiation of their rights brought home to them. Where ouster is established, the excluded cotenants may recover the reasonable rental value.

These claims frequently exceed the value of a small fractional interest, which is why they should be pleaded and documented from the outset rather than raised late.

Defending a partition suit

Being sued for partition does not mean the property will be sold. A defending cotenant can:

• Contest the plaintiff’s claimed ownership fraction or title altogether
• Establish that Chapter 23A applies and invoke the buyout right
• Demonstrate that the property is susceptible to a fair division in kind
• Assert reimbursement and accounting claims that reduce the plaintiff’s net recovery
• Enforce a binding agreement not to partition, where one exists

Where the family’s goal is keeping the property, the buyout mechanism under Chapter 23A is usually the path — but it operates on a 45-day clock that begins running on notice of the value determination. Missing it forfeits the right.

Related title disputes

Partition cases frequently sit alongside other title problems:

• Trespass to try title (Property Code Chapter 22) — the method for determining title to real property in Texas, and the exclusive remedy for resolving competing claims to title
• Suits to quiet title and to cancel void or forged deeds
• Adverse possession claims under the three-, five-, ten-, and twenty-five-year limitations statutes (Civ. Prac. & Rem. Code §§ 16.024–16.028)
• Boundary disputes and unrecorded conveyances
• Statutory real estate fraud under Business and Commerce Code § 27.01, which covers false representations of material fact and false promises made to induce a real estate transaction and provides for actual damages, exemplary damages where the defendant had actual awareness of the falsity, and attorney’s fees