Call For A Consultation (512) 234-7913
Call For A Consultation (512) 234-7913
In this article, you will discover:
Partition actually exists in real estate law. It is a right for co-tenants who own property together. Each has an undivided percentage of that property and, at the same time, they all own it together. That means if you and someone else both own five acres together, you don’t each own two and a half acres. Each of you has an undivided interest in the entire five acres.
Suppose you and someone else buy a house together, but ultimately aren’t together or no longer want to own property together.
Each of you has the absolute right of partition, meaning you cannot be forced to co-own with someone. You can give notice that you don’t want to co-own. The option is for one of you to buy the other out at fair market value.
Usually, when people really realize there’s no defense to partition, they will agree to a sale. If you can’t reach an agreement, you go to court and ask for a partition.
A partition can be done in two ways: by division or by receivership.
Your five acres can be legally divided so that each of you receives 2.5 acres. While division must be fair, that can be complicated. For example, you might want the front half of the property that borders the highway, leaving your co-owner the back half, which lacks access.
If a fair division cannot be accomplished, then the court appoints a receiver.
A receiver is someone, usually an attorney, who is authorized to sell the property without anyone’s consent. They don’t need any input from you or your signature. They have the right to sell the property, take out their expenses, and then divide the remainder of the proceeds between you and your co-owner.
Receivership is expensive. You’re not only paying the realtor, but you’re also paying a costly receiver.
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If a will gives the executor the power of sale, then they have the full authority to sell the real property. As long as they do it fairly and get fair market value, they have the absolute right to do that.
Without a will, there’s no power of sale. You must have the beneficiaries’ agreement to sell the property.
If there’s no agreement, nothing can be done, and you can’t move forward with a partition action. However, if the property still belongs to the estate and has not been distributed to the beneficiaries, the executor can sell it if they have the power of sale.
Usually, once an attorney explains the client’s situation and options, the client agrees to a sale. However, that may depend on how many people are involved. With two people, it’s a little easier. If 11 people inherit a house and some of them are elderly, reaching a signed agreement will be more difficult.
At that point, it may be better to have a receiver sell the house, because it will never be resolved otherwise. For example, if one beneficiary moves in, decides they own the house and refuses to cooperate or acknowledge the law, partition is the only option.
In most cases, most reasonable people, when they really realize there’s no defense to partition, will come to the table ready to negotiate.
Partition cases are expensive. Everybody gets less. The only people who really benefit from your inability to compromise are the defense attorney, plaintiff’s attorney and the attorney appointed as the receiver. You’re only hurting yourself.
No one wins in a partition suit. If you bring the suit, you lose money for your stubbornness, and whoever refuses to sell receives less, and the property is sold anyway.
The only time this situation ever tugged at my heartstrings was when a client bought a house with a friend who didn’t have good credit. The friend never paid a penny, moved away, and wasn’t heard from again for 40 years.
My client paid off the house, lived there and paid all its expenses for 40 years. Then the friend returned, wanting their half of the house, even though they’d not paid anything for all those years. That is not equitable.
The friend had to be bought out, even though they contributed nothing, because otherwise they could have forced the sale. They didn’t even contribute to the initial down payment.
The lesson here is: if you’re going to co-own property with people, ensure that there’s a written agreement or contract in place.
For more information on probate partition disputes in Travis County, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (512) 234-7913 today.
Attorney Farren Sheehan is a skilled lawyer based in Pflugerville, Texas, who has helped numerous clients like you navigate the intricacies of estate planning law. With decades of experience, she is prepared to assist you in navigating complex probate partition disputes so that all parties are treated equitably, avoid unnecessary costs and emerge with their fair share.
Still have questions? Ready to get started? Contact Sheehan Law PLLC today to schedule an initial consultation.
