Partitions - Ending The Relationships as Joint Owners
Occasionally, joint owners of an undivided parcel of real property find themselves desiring to no longer be joint owners. The reasons vary, but typically they either never intended to be joint owners in the first place, the joint owners’ relationship has since deteriorated, or simply because circumstances have changed requiring division of the parcel. Whatever the reason may be, in Texas a joint owner has the right to divide and separate his/her interest in the property from the other joint owners’ interest. This division is what is known in Texas as a partition. In effect, a partition vests each of the parties with a separate ownership of the property.
Luckily, if the joint owners are in agreement as to the manner of the division, they can simply enter into a voluntary partition by written instrument, deed, or agreement and without court intervention. However, if the joint owners are not in agreement, an owner must file suit against all the other joint owners to compel a judicial partition.
A judicial partition is procedurally unique in that it consists of two separate judgments or decrees: the Preliminary Decree and the Subsequent or Final Decree.
THE PRELIMINARY DECREE
First, the Preliminary Decree determines the proportionate interests of the owners. This is often more complicated than awarding one owner fifty percent and the other owner fifty percent. At this stage, the owner has the opportunity to argue for a specific tract of the property, contribution for maintaining or improving the property, reimbursement if he/she was denied access by a joint owner, or any other issue that affects an owner’s interest.
Next, the Preliminary Decree determines whether the property can be fairly divided so that each owner is given his proportionate interest without greatly diminishing the value of the property. If the property cannot be divided, the Preliminary Decree will order the property be sold and specify each owner’s interest in the proceeds of the sale. If the property can be divided, the Preliminary Decree will specify each owner’s interest in the property and appoint three disinterested commissioners to make the partition.
This stage is extremely important because it is the owner’s only opportunity to argue for any adjustment in his ownership interest. For example, the owner can argue he is entitled to reimbursement for maintenance and upkeep, or that he is entitled to a specific piece of the property. Once the Preliminary Decree becomes final, the owner may not argue or modify adjustments.
THE SUBSEQUENT/FINAL DECREE
If the Preliminary Decree determines that the property can be divided, the appointed commissioners next divide the property and draw the actual boundary lines of the partition. The commissioners have discretion to divide the property as they see equitable, so long as the division complies with the Preliminary Decree. The commissioners then file a report that states how the property is divided and the values of the resulting tracts.
Next, the owners have the opportunity to object to the commissioner’s division of the property on the grounds that it is erroneous or fails to comply with the Preliminary Decree. If the court grants the objections, new commissioners will be appointed and the process will repeat. If the court overrules the objections, the court will enter a Subsequent Decree approving the commissioner’s report. The Subsequent Decree gives the owners legal title to his respective portion of the property, and the partition is complete.
Due to the procedural complexity and the potential consequences throughout each step of the partitioning process, an experienced attorney is crucial for a joint owner to be awarded the greatest interest to which he is entitled. Whether you would like a voluntary partition drafted or reviewed, or you seek representation in a judicial partition, please contact our offices for an initial consultation.