What is a Partition?

In its simplest form, partition means a division of some object or idea. In everyday life, it probably most frequently refers to the division in a room, such as the sliding heavy curtains separating Sunday School classes at church. In a legal sense, though, it means the division of an interest.

Although partition can apply to an interest in any asset, partitions typically arise in regards to real property. Further, courts review two primary types of partitions, a partition-by-sale and a partition-in-kind. As one might have figured, a partition-by-sale means that a court requires a sale of the property. A partition-in-kind means that the property is merely divided so that multiple owners hold an undivided interest to a portion of the asset.

At this point, the reader may be asking a very good question. “If I’ve done nothing wrong, then how can the court require me to sale or divide my property?” Regardless of how the reader may feel about this topic, Texas courts favor partition as an effective means to satisfy competing interests between multiple owners. And, of the different types of partitions, a partition-in-kind is favored so long as a fair and equitable division can be made.

So, what does “a fair and equitable division mean?” When can the courts force an owner to sale her property? Again, that is a good question. It is actually a fact question for the judge or jury to decide. And, the decision will vary depending upon the facts of the case and the particular minds of the triers of those facts. It is what attorneys get paid to argue.

However, a fair and equitable division is made easier when one is dealing with farm land, ranches, or timberland, assuming the value of the land is relatively similar across the entire property. Houses, on the other hand, are not particularly easy to partition in kind because they cannot typically be sold by the room. The analysis becomes even murkier when someone owns a house on a few acres.

An additional query regarding partitions is whether they override homestead rights, which is believed to be the untouchable right in Texas. Typically, though, the right to partition overrides homestead rights. One may often see partition rights trump homestead rights in divorces or other domestic separations. Other times, it may arise is when an adult child is taking care of an elderly parent that dies and leaves her house to all of her children.

The final question to be answered is how the proceeds of a partition-by-sale may be distributed. This is a lengthy topic for another post. Again, it is fraught with debate and legal intrigue. It goes without saying, though, that one should hire an attorney when faced with a partition in Texas.

Robert Newton is an attorney in Frisco, Texas, that practices in the areas of real estate, business, and estate planning.