Partition Action Complaint - Texas

PLAINTIFF'S ORIGINAL PETITION FOR PARTITION OF REAL PROPERTY — TEXAS

TABLE OF CONTENTS

1. Caption
2. Discovery Control Plan
3. Parties and Cotenancy Shares
4. Jurisdiction and Venue
5. The Property and Legal Description
6. Nature and Source of Title
7. Liens and Encumbrances
8. Count I — Right to Partition (Prop. Code § 23.001)
9. Count II — Partition in Kind (TRCP 760-761)
10. Count III — Partition by Sale (TRCP 770)
11. Count IV — Heirs' Property / UPHPA (Prop. Code ch. 23A)
12. Count V — Accounting Among Cotenants
13. Appointment of Commissioners
14. Prayer for Relief
15. Verification
16. Signature and Service Blocks
17. Certificate of Service
18. Texas Practice Notes
19. Sources and References

1. CAPTION

CAUSE NO. [________________________________]

IN THE [____ DISTRICT / COUNTY] COURT

[___] JUDICIAL DISTRICT

[________________] COUNTY, TEXAS

PLAINTIFF'S ORIGINAL PETITION FOR PARTITION OF REAL PROPERTY

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW [PLAINTIFF NAME], Plaintiff, and files this Original Petition for Partition of Real Property against the above-named Defendants pursuant to Chapter 23 of the Texas Property Code, Chapter 23A (where applicable), and Texas Rules of Civil Procedure 756-771, and respectfully shows the Court as follows:

2. DISCOVERY CONTROL PLAN

2.1. Plaintiff intends to conduct discovery under Level [2 / 3] pursuant to Texas Rule of Civil Procedure 190.

2.2. Plaintiff seeks: ☐ a decree of partition of real property; ☐ a determination of the parties' respective shares; ☐ an accounting; ☐ non-monetary relief. TRCP 47(c).

3. PARTIES AND COTENANCY SHARES

3.1. Plaintiff [PLAINTIFF NAME] is an individual residing in [COUNTY] County, Texas, and owns an undivided [____] interest in the Property.

3.2. Defendant [DEFENDANT 1] is an individual residing in [COUNTY / STATE], owns an undivided [____] interest in the Property, and may be served with process at [SERVICE ADDRESS] pursuant to TRCP 106.

3.3. Defendant [DEFENDANT 2] is [a corporation / LLC / trust] organized under the laws of [STATE], with registered agent [REGISTERED AGENT] at [REGISTERED ADDRESS], and owns or claims an undivided [____] interest in or lien upon the Property.

3.4. Defendants designated "All Unknown Heirs, Devisees, and Assigns of [DECEDENT], Deceased" and "All Persons Claiming Any Interest in the Property" are persons whose names and residences are unknown to Plaintiff after diligent inquiry. They are made parties by citation by publication pursuant to TRCP 109.

3.5. The respective interests of all known owners are as follows (TRCP 756 requires all joint owners and claimants to be made parties):

4. JURISDICTION AND VENUE

4.1. This Court has subject-matter jurisdiction because the nature of the relief sought (partition of real property) is within the jurisdictional limits of this Court.

4.2. Venue is mandatory in [________________] County, Texas, under Tex. Prop. Code § 23.002 and Tex. Civ. Prac. & Rem. Code § 15.011 because this action involves the partition of real property situated in this county.

5. THE PROPERTY AND LEGAL DESCRIPTION

5.1. The real property at issue (the "Property") is situated in [________________] County, Texas, and is commonly known as [STREET ADDRESS, CITY, ZIP].

5.2. The Property is more particularly described as follows:

[INSERT FULL LEGAL DESCRIPTION — metes and bounds, or Lot ___, Block ___ of the ____________ Subdivision per plat recorded in Vol. ____, Page ____, Plat Records of __________ County, Texas]

5.3. The Property bears Account No. [____________________] in the records of the [COUNTY] Central Appraisal District.

6. NATURE AND SOURCE OF TITLE

6.1. Plaintiff acquired Plaintiff's undivided interest by [General / Special / Quitclaim] Warranty Deed from [GRANTOR] dated [__/__/____] and recorded [__/__/____] in Volume [____], Page [____], Official Public Records of [COUNTY] County, Texas (Instrument No. [____________________]), ☐ or by inheritance from [DECEDENT], ☐ or by [decree / other].

6.2. Plaintiff is a joint owner of a present, possessory interest in the Property and has an equal and present right to possess it along with the other joint owners. The right to partition is absolute. Tex. Prop. Code § 23.001.

7. LIENS AND ENCUMBRANCES

7.1. The Property is subject to the following liens, deeds of trust, judgments, or other encumbrances of record, the holders of which are joined to the extent their interests appear of record:

7.2. Plaintiff requests that the Court determine the validity, priority, and amount of all liens and provide for their satisfaction out of the encumbered cotenant's share or the proceeds of any sale.

8. COUNT I — RIGHT TO PARTITION (Prop. Code § 23.001)

8.1. Plaintiff incorporates the foregoing paragraphs as though fully set forth.

8.2. Under Tex. Prop. Code § 23.001, a joint owner or claimant of real property or an interest in real property may compel a partition of the interest or the property among the joint owners or claimants under Chapter 23 and the Texas Rules of Civil Procedure.

8.3. Plaintiff is a joint owner with a present, possessory interest in the Property and is entitled to partition as an absolute right. Homestead rights, if any, are subordinate to the right of partition.

8.4. Plaintiff requests that the Court, pursuant to TRCP 760, determine the share or interest of each of the joint owners or claimants in the Property and all questions of law or equity affecting title before appointing commissioners.

9. COUNT II — PARTITION IN KIND (TRCP 760-761)

9.1. Plaintiff incorporates the foregoing paragraphs as though fully set forth.

9.2. Partition in kind is favored in Texas. Pursuant to TRCP 761, upon determining the parties' respective shares, the Court shall appoint commissioners to make a fair, just, and equal partition of the Property in kind and to report to the Court.

9.3. Plaintiff alleges that the Property ☐ is / ☐ is not susceptible of a fair and equitable partition in kind.

9.4. Owelty. If the Property cannot be partitioned in kind in shares of exactly equal value, the Court may require owelty — a money payment by the party receiving the more valuable portion — to equalize the partition among the cotenants.

10. COUNT III — PARTITION BY SALE (TRCP 770)

10.1. Plaintiff incorporates the foregoing paragraphs as though fully set forth.

10.2. Pursuant to TRCP 770, if the Court is of the opinion that a fair and equitable division of the Property cannot be made in kind, it shall order a sale of the Property and a division of the proceeds among the joint owners according to their respective interests.

10.3. Plaintiff alleges that a sale is necessary because: ☐ the Property is a single residence or improvement not susceptible to physical division; ☐ partition in kind would materially impair its value or the value of the parties' shares; ☐ the configuration and number of owners make in-kind division impracticable; ☐ other: [____________________].

10.4. Any sale shall be conducted in the manner provided by TRCP 770 (and ch. 23A if applicable), with the net proceeds applied first to valid liens and the costs of the action, and the balance distributed to the parties according to their respective interests as adjusted by the accounting in Count V.

11. COUNT IV — HEIRS' PROPERTY / UPHPA (Prop. Code ch. 23A)

11.1. Plaintiff incorporates the foregoing paragraphs as though fully set forth.

11.2. The Property ☐ is / ☐ may be "heirs' property" within the meaning of Tex. Prop. Code § 23A.002 because it is held in tenancy in common with no binding partition agreement, one or more cotenants acquired title from a relative ([ANCESTOR NAME]), and ☐ 20% or more of the interests are held by relatives; ☐ 20% or more of the interests are held by a person who acquired title from a relative; or ☐ 20% or more of the cotenants are relatives.

11.3. Pursuant to Tex. Prop. Code § 23A.003, in an action to partition real property under Chapter 23 the Court shall determine whether the Property is heirs' property; if so, the Property must be partitioned under Chapter 23A unless all of the cotenants otherwise agree in a record. Chapter 23A supersedes inconsistent provisions of Chapter 23 and the Texas Rules of Civil Procedure.

11.4. If the Court determines the Property is heirs' property, Plaintiff requests that the Court proceed under the UPHPA, including: (a) a court-ordered determination of value by appraisal under § 23A.006; (b) the cotenant buyout under § 23A.007, allowing nonpetitioning cotenants to purchase the interests of cotenants requesting a sale; (c) consideration of the statutory factors favoring partition in kind under § 23A.009; and (d) if a sale is ordered, an open-market sale, sealed bids, or auction under §§ 23A.010-23A.011, rather than a forced low-price judicial sale.

12. COUNT V — ACCOUNTING AMONG COTENANTS

12.1. Plaintiff incorporates the foregoing paragraphs as though fully set forth.

12.2. Plaintiff requests a full accounting and adjustment of the equities among the cotenants so that each equally shares the burdens and benefits of ownership, including the following credits and charges:

• ☐ Contributions / disbursements. Sums advanced by a cotenant beyond that cotenant's proportionate share for mortgage principal and interest, ad valorem taxes, insurance, and necessary repairs and preservation, in the approximate amount of $[__________];
• ☐ Improvements. The enhanced value attributable to necessary or value-enhancing improvements made by a cotenant;
• ☐ Rents and value of use / ouster. Rents and profits actually received by a cotenant, and the reasonable rental value of the Property where a cotenant has been in exclusive possession amounting to an ouster of the other cotenant(s);
• ☐ Waste or damage attributable to a cotenant;
• ☐ Owelty as alleged above.

12.3. Plaintiff requests that the net result of the accounting be charged against or credited to the respective shares of the cotenants in the Property or in the proceeds of any sale.

13. APPOINTMENT OF COMMISSIONERS

13.1. After determining the parties' respective shares (TRCP 760), Plaintiff requests that the Court appoint three (3) competent and disinterested persons as commissioners pursuant to TRCP 761 to partition the Property in kind and to report their proceedings to the Court (TRCP 762-769).

13.2. If the Court determines the Property is heirs' property, commissioners and any sale shall proceed under Tex. Prop. Code § 23A.005 and §§ 23A.008-23A.011.

14. PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that:

A. ☐ Defendants be cited to appear and answer herein;

B. ☐ The Court determine the share or interest of each joint owner or claimant in the Property and all questions of law and equity affecting title (TRCP 760);

C. ☐ The Court order partition of the Property in kind among the parties, appoint commissioners (TRCP 761), and decree owelty as necessary to equalize the partition;

D. ☐ If a fair and equitable division in kind cannot be made, the Court order a sale of the Property and division of the proceeds according to the parties' interests (TRCP 770);

E. ☐ The Court determine whether the Property is heirs' property and, if so, partition the Property under the Uniform Partition of Heirs' Property Act (Prop. Code ch. 23A), including a determination of value, the cotenant-buyout option, and any open-market sale;

F. ☐ The Court order a full accounting among the cotenants and adjust the equities for contributions, improvements, rents, ouster, waste, and owelty as pleaded in Count V;

G. ☐ The Court tax the costs of partition, including commissioners' fees and reasonable attorneys' fees to the extent allowed by law, against the parties in proportion to their interests or out of the proceeds of sale; and

H. ☐ The Court grant Plaintiff such other and further relief, at law or in equity, to which Plaintiff may be justly entitled.

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], State Bar No. [____________]

[FIRM ADDRESS / PHONE / FAX / EMAIL]

ATTORNEY FOR PLAINTIFF

15. VERIFICATION

STATE OF TEXAS §
COUNTY OF [________________] §

BEFORE ME, the undersigned authority, on this day personally appeared [PLAINTIFF NAME], who, being by me duly sworn, deposed and stated:

"My name is [PLAINTIFF NAME]. I am the Plaintiff in the above-styled and -numbered cause. I have read the foregoing Original Petition for Partition. Every fact stated therein is within my personal knowledge and is true and correct, except for those facts alleged on information and belief, which I believe to be true."

[________________________________]
[PLAINTIFF NAME]

SWORN TO AND SUBSCRIBED before me this [____] day of [________], [______].

[________________________________]
Notary Public, State of Texas
Commission Expires: [__/__/____]

16. SIGNATURE AND SERVICE BLOCKS

Dated: [__/__/____]

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], State Bar No. [____________]

Attorney for Plaintiff

[ADDRESS / PHONE / EMAIL]

17. CERTIFICATE OF SERVICE

I certify that on [__/__/____], a true and correct copy of the foregoing PLAINTIFF'S ORIGINAL PETITION FOR PARTITION OF REAL PROPERTY was served on all counsel and parties of record in accordance with TRCP 21 and 21a via [the electronic-filing manager / certified mail, return receipt requested / personal service / citation by publication]:

[SERVICE LIST WITH NAMES AND ADDRESSES]

[________________________________]
[ATTORNEY NAME]

18. TEXAS PRACTICE NOTES

• Absolute right. The right to partition is absolute for a joint owner with a present possessory interest, even of homestead. Tex. Prop. Code § 23.001; Wood v. Wiggins, 650 S.W.3d 533 (Tex. App.—Houston [1st Dist.] 2021, pet. denied). The right may be waived or contracted away by agreement.
• Two-stage procedure. A Texas partition proceeds in two decrees under the Rules of Civil Procedure: (1) the court first determines the parties' shares and whether the property is susceptible to partition in kind (TRCP 760-761); then (2) commissioners partition in kind and report (TRCP 762-769), or, if in-kind partition is not fair and equitable, the court orders a sale (TRCP 770).
• Necessary parties. All joint owners and claimants must be joined (TRCP 756). Owners of non-possessory interests (e.g., easement or remainder holders) are not necessary parties and cannot seek or oppose partition. Tex. Oil & Gas Corp. v. Ostrom, 683 S.W.2d 231 (Tex. App. 1984).
• UPHPA (in force). Texas adopted the Uniform Partition of Heirs' Property Act in 2017, codified at Tex. Prop. Code Chapter 23A (§§ 23A.001-23A.013). In any Chapter 23 partition the court must determine whether the property is "heirs' property" (§ 23A.003); if so, it must be partitioned under Chapter 23A unless all cotenants agree otherwise in a record. The Act adds notice, a court-ordered appraisal/determination of value (§ 23A.006), a cotenant buyout right (§ 23A.007), partition-in-kind preference factors (§ 23A.009), and open-market sale procedures (§§ 23A.010-23A.011).
• Heirs'-property definition. Tenancy in common, no binding partition agreement, a cotenant who took title from a relative, and a 20% relative/related-interest threshold. § 23A.002.
• Personal property. Section 23.001 also reaches personal property (furniture, fixtures, equipment) on the premises.
• Confirm citations. Verify current section numbers and rule text on the Texas Constitution and Statutes site and the Texas Rules of Civil Procedure before filing.

19. SOURCES AND REFERENCES

• Tex. Prop. Code Chapter 23 (Partition) — https://statutes.capitol.texas.gov/Docs/PR/htm/PR.23.htm
• Tex. Prop. Code Chapter 23A (Uniform Partition of Heirs' Property Act) — https://statutes.capitol.texas.gov/Docs/PR/htm/PR.23A.htm
• Tex. Prop. Code § 23A.003 (Applicability) — https://codes.findlaw.com/tx/property-code/prop-sect-23a-003/
• Tex. R. Civ. P. 756-771 (Partition)
• Tex. Civ. Prac. & Rem. Code § 15.011 (Mandatory venue — real property)
• Wood v. Wiggins, 650 S.W.3d 533 (Tex. App.—Houston [1st Dist.] 2021, pet. denied)
• Tex. Oil & Gas Corp. v. Ostrom, 683 S.W.2d 231 (Tex. App. 1984)

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