Defenses to a Partition Lawsuit in Texas
Defenses to a Partition Lawsuit
There are very few defenses to a partition, after all it is an absolute right that each joint owner has in the property. However, there are a few that must be considered before taking steps to file your partition lawsuit.
Homestead Rights of Surviving Spouse
Texas has robust homestead laws and protections. In the Texas Constitution, a surviving spouse is entitled to the sole use and possession of their homestead that they shared with their deceased spouse—this is true regardless of whether the property is community or separate property.
The only way to defeat this defense is to show that the surviving spouse has abandoned the homestead. In order to show that the surviving spouse abandoned the homestead you must show 1) cessation or discontinuance of the use of the property as a homestead and 2) the intent to permanently abandon the homestead. Alternatively, you can prove that the surviving spouse has committed waste and, therefore, no longer has a right to a push off a partition of the property. Waste is generally defined as a surviving spouse or life tenant using the property in a manner that diminishes the value or injures the remaindermen’s interest in the property. For example, failure to pay property taxes or main the property are the most common versions of waste.
2. Prior Contractual Obligation
The right to partition real property is absolute, however, each joint owner is permitted to enter into a contractual agreement with another joint owner or third party limiting their absolute right to partition.
In Texas, it is well settled that joint owners of real property can enter into a contractual agreement to limit, modify, or avoid a partition by agreement. If a partition lawsuit is in violation of this contractual agreement, then the court will dismiss the partition lawsuit.
A contractual agreement to limit, modify, or avoid a partition can be in writing or implied from the actions of the joint owners. A written contract is shall be construed by the “four corners” of the contract, meaning that the documents itself must only be considered unless there is ambiguity in the contract that requires the joint owners to testify as to the intention of the terms and provisions in the contract. Other times, a contractual agreement can be implied from circumstances, such as an express agreement, either written or oral, against partition.
Typically, a prior contractual obligation limiting the right to partition is done in a business context. For example, joint owners of mineral interests who enter into an oil and gas pooling agreement generally will waive the right to a partition. Further, a partition can be implied if a partition would defeat the purpose of the contract. Using the oil and gas example, a partition would greatly limit the right or remove the right of the third party company from extracting oil and gas per their lease agreement.
Finally, a prior partition agreement amongst the joint owners would preclude any joint owner from later claiming the right to partition. After all, the joint ownership has already been severed by agreement, meaning that there no longer is any jointly owned property to partition.
Finally, even if the joint tenants have entered into an agreement of “rights of survivorship,” the joint tenancy is still subject to a partition. Further, there is a “rule of reasonableness” that applies to partitions in that the court is permitted to look at the contract, whether written or oral, to determine if it is reasonable to limit the right to partition based on the purposes for the agreement entered.
3. Failure of Title
Finally, the last defense is failure of title. If a joint owner does not have any interest in the property that they are requesting to be partitioned, then a court must dismiss the partition lawsuit.
