Petition for Partition of Real Estate in Texas

What Is a Petition for Partition of Real Estate?

Background

“A partition of real estate is a special proceeding governed by particular rules of civil procedure that describe what the petition must state, the court's role, and the roles of surveyors and commissioners, among other things.” (Woods v. Woods (2006) 193 S.W.3d 720, 724 citing Tex.R. Civ. P. 756-771.)

The Texas Rules of Civil Procedure provide a two-step procedure for partition of real estate. (See Tex.R.Civ.P. 756, et seq.)

Texas Rule of Civil Procedure 760 provides that, “[u]pon the hearing of the cause, the court shall determine the share or interest of each of the joint owners or claimants in the real estate sought to be divided, and all questions of law or equity affecting the title to such land which may arise.” (Id.)

Rule 761 then provides, in pertinent part, that “[t]he court shall determine before entering the decree of partition whether the property, or any part thereof, is susceptible of partition.” If the property is not partitionable in kind, the trial court orders partition by sale. (See Tex.R.Civ.P. 770.) However, if the court determines the land to be partitionable in kind, it then appoints commissioners to make the partition and instructs them in its decree concerning the share or interest of each party. (Tex.R.Civ.P. 761.)

Texas Rule of Civil Procedure 766 further provides that “[t]he commissioners, or a majority of them, shall proceed to partition the real estate described in the decree of the court, in accordance with the directions contained in such decree and with the provisions of law and these rules.” Rules 764 and 767 provide that the court, or the commissioners on their own authority, may appoint a surveyor and cause the property in question to be surveyed.

Petition Procedure and Process

A partition proceeding is a two-step process. (Yturria v. Kimbro (1996) 921 S.W.2d 338, 341; see Tex. R. Civ. P. 756-771.)

In the first step, the trial court determines:

the share or interests of each of the owners;
all questions of law or equity affecting the title to the land; and
whether the property is susceptible to partition or is the subject of a sale.

(Tex. R. Civ. P. 760, 761, 770.)

If the trial court determines the property is susceptible to partition, then in the second step the court must appoint commissioners and instruct them as to the manner of the partition. (Tex. R. Civ. P. 761, 764, 766; Yturria, 921 S.W.2d at 341.)

Accordingly, unlike other proceedings, a partition case has two final judgments, both of which are appealable. (Griffin v. Wolfe (1980) 610 S.W.2d 466; Thomas v. McNair (1994) 882 S.W.2d 870, 876.) The trial court's initial decree determining partitionability and appointing commissioners, although often referred to as an interlocutory decree, is a final and appealable order which is conclusive of all matters decreed within it. (Azios v. Slot (1983) 653 S.W.2d 111, 114; Rayson v. Johns (1975) 524 S.W.2d 380, 382.)

In addition to determining the basic issues of partitionability in kind and the fractional interests of the parties, it is well established that the trial court also has the power during the initial stage of the partition proceeding to adjust all equities between the parties. (See Sayers v. Pyland (1942) 139 Tex. 57, 161 S.W.2d 769; Becker v. Becker (1982) 639 S.W.2d 23, 25.)

The trial court applies the rules of equity in determining the broad question of how property is to be partitioned. (See Moseley v. Hearrell (1943) 141 Tex. 280, 171 S.W.2d 337, 338-39; Cleveland v. Milner (1943) 141 Tex. 120, 170 S.W.2d 472, 476; Thomas, 882 S.W.2d at 879.)

Moreover, disputed issues of fact at this stage of the partition proceeding must be tried by a jury when one has been properly demanded. (Azios, 653 S.W.2d at 113-14; Rayson, 524 S.W.2d at 382; Redden v. Hickey (1957) 308 S.W.2d 225.)

Proof is made to the factfinder at trial of the existence and value of improvements to the property at the time of partition and of other equitable considerations which may warrant awarding a particular portion of the property to one of the parties. (See Burton v. Williams (1946) 195 S.W.2d 245, 247-48.)

Power of Commissioners

Commissioners in partition have no judicial powers and no authority to take into consideration equitable claims that have not already been determined by the factfinder at trial and embodied in the trial court's instructions to them. (Stefka v. Lawrence (1928) 7 S.W.2d 894.) Certainly the commissioners’ decisions about where to divide the property involve mixed considerations of equity and property valuation. The equitable considerations, therefore, must be spelled out adequately in the trial court's instructions to the commissioners based on the findings or verdict. The commissioners' faithfulness in following those instructions is then subject to scrutiny by the trial court in response to objections to the report of the commissioners under Rule 771. (Yturria v. Kimbro (1996) 921 S.W.2d 338, 342.)

Objections to Commissioners Report

Either party to the suit may file objections to any report of the commissioners within thirty days of the date the report was filed. (Hershey v. Duncan (2004) Nos. 13-01-688-CV, 13-02-673-CV, at *1 citing Tex. R. Civ. P. 771.) If such objections are filed, a trial on the issues shall be conducted. (Id.) The effect of the rule is to give any party at interest the right to trial on the objections with or without a jury. (Redden v. Hickey (1957) 308 S.W.2d 225, 229.) If the report is found to be “erroneous in any material respect, or unequal and unjust,” it must be rejected, “other commissioners” are to be appointed, and “the same proceedings had as in the first instance.” (Yturria, 921 S.W.2d at 342; see Tex. R. Civ. P. 771.) Otherwise, the trial court shall enter a second judgment confirming the partition made by the commissioners. (Yturria, 921 S.W.2d at 342.)

The Court’s Decision

Concerning a petition for partition of real estate and joint owners, the court “shall determine the share or interest of each of the joint owners or claimants in the real estate sought to be divided, and all questions of law or equity affecting the title to such land which may arise.” (Estate Land Co. v. Wiese (2015) No. 14-13-00524-CV, at *6 citing Tex. R. Civ. P. 760.) Further, “[b]efore signing its decree of partition, the court shall determine whether the property is susceptible of partition. (Id., citing Tex. R. Civ. P. 761.) If it is determined to be incapable of partition in kind, then the trial court must order partition by sale. (See Tex. R. Civ. P. 770; see also Pfefer v. Meissner (1955) 286 S.W.2d 241, 246 [concluding the trial court has continuing jurisdiction to enter orders as needed in a partition action.])

It is well established that “[p]artition is a standard remedy when undivided property interests are concerned — and could in the proper situation be enforced in a separate action with or without the language in the divorce decree. The entirety of property can be sold only if the property is not divisible in kind.” (In re Lewis (2007) 223 S.W.3d 756, 761.)

Documents for Petition for Partition of Real Estate in Texas

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WYNN, LORRAINNE vs. WALL, JANICE F PARTITION document preview

Plaintiffs Original Petition for Partition of Real Estate by Sale

9 pages

3/22/2024 4:24 PM Marilyn Burgess - District Clerk Harris County Envelope No. 85877113 2024-18684 / Court: 269 By: Wanda Chambers Filed: 3/22…