7 Easy Steps to Prepare & File a Partition Lawsuit in Texas

7 Easy Steps to Prepare and File a Partition Lawsuit in Texas

In this article, Partition Texas lays out 7 easy steps that you need to take in order to file a partition lawsuit. If you have any questions or wish to have Partition Texas assist you with your partition lawsuit, please schedule a free consultation today!

Step 1: Determining the Property to Be Partitioned

The first step in a partition lawsuit is to determine the property that you wish to partition. This sounds like a simple enough task, however, this can be more complicated than it sounds. If the property is rural, it may seem that everything is one parcel. More often than not, rural property is made up of several parcels or tracts of land that may be contiguous. In order to clearly state the full legal description of the property that you are seeking to partition, you have to determine whether this is the case. This can be done by piecing together the chain of title. 

In order to determine the chain of title, you will need to work backwards from the deed or conveyance document that placed you in the chain of title. So, for example, if you and your brother inherited the property from your mother, you will need to start with the deed from your mother’s estate. You will then need to work backwards from your mother and how she received her interest in the property. This is something you have to do for each parcel or tract of land that is subject to the partition lawsuit. Many times, this is a relatively simple process, however, there are times when you discover that a parcel or tract was never actually transferred. In order to move forward, you will have to clean up the chain of title for the Court to have the ability to grant the relief that you seek. 

Step 2: Determining whether the Property can be Partitioned in Kind

Look at the general make up of the property and how many joint owners there are. Is there enough land to divide amongst the joint owners? This question is the same one that the judge will ask themselves. Sticking with our example above, it is an obvious case that a piece of property should be partitioned between four people that equally own a 100 acre tract of land. However, could four people divide a piece of property that consists of 10 acres of land? The answer is likely yes, but property is unique and, therefore, a judge must consider the make up of the land and how to division may effect the other joint owners. 

In other cases, such as a house in Dallas, Texas that sits on .1 of an acre of land, it obviously not a property that can be divided. In such cases, simply point out that the only option is a partition by sale.

Step 3: Determining the Joint Owners

The next steps is to figure out who all is going to be a party to the partition lawsuit. For some, this might be very simple. The property may have been inherited by you and your siblings who are all still alive. However, this can be complicated by how messy the chain of title is. See “Who are you: Complications in Ownership Interest” for common scenarios that can complicate the process. 

Step 4: Determining the Ownership Interest of each Joint Owner

Now that you have the information regarding the chain of title for the property and each joint owner, you have to calculate the share or ownership interest that each joint owner has in the property. So, sticking with the example above, if there are four joint owners of the property, you can either state that each joint owner has a 25% interest in the property or each joint owner has 1 share and that the property consists of 4 shares.

Step 5: Determining the address for each Joint Owner

In order to file a petition, you will have to place an address for each joint owner. The reason being is that the court clerk will have to issue citation of the lawsuit and needs the address for each party to the lawsuit in order to issue this citation. Further, by determining where each joint owner lives or at least their last known address, you will expedite the partition lawsuit. In order for the Court to schedule the first trial on your partition, you have serve each joint owner with personal service. If you are unable to serve them or you cannot locate them, then you will have to seek service on the joint owner by publication, which can cause many complications and issues with your lawsuit. Further, an attorney will have to be appointed for each joint owner that is served by publication, which can cause undue delay in having your partition lawsuit heard.

Step 6: Determine if you have any offsets

Before filing your petition, determine if you have any offsets that you would like the Court to make. Such offsets include, but are not limited to, mortgage payments, property taxes, insurance premiums, and safekeeping of the property. These are generally referred to as “legal offsets,” however, you should also consider if you have any equitable offsets that you might be entitled to such as charging a joint owner rent for utilizing the property without your consent, potential attorneys fees and expenses, and requesting a portion of the property that your homestead may be located on.

Step 7: Preparing and Filing your Partition Lawsuit

Now, you have gathered all of the basic information in order to draft and file your partition lawsuit. With this information, you will need to compile a petition properly laying out steps 1 through 6. Once you have your petition ready, you will file your petition with the court of proper jurisdiction in the county in which the property is located.