How is land partitioned in Texas? Attorney Philip Hundl talks about the partition of land in this presentation at the Brazoria County Extension office, as part of an Agriculture Law program. Call 800-929-1725 for an appointment.
Summary of the Land Partition Video
– All right, land partition. I mentioned that I do a lot of land litigation. One component of land litigation is the partition of undivided land. Many people own an undivided interest in land with their siblings or cousins, whatever. And sometimes they feel like they’re stuck. “Oh no, I got 10% or 20% undivided, “20% interest in this land and, oh well, “that’s the way it’s going to be “and I’m just–my brother manages it and that’s it.”
Two Types of Land Partition
Partition in Kind
Well, you can partition the land. And so, what does that look like? You’ve got partition in kind and partition by sale. Partition in kind is the most common that I deal with in rural land. We had about a 3,000-acre ranch that was partitioned. Sometimes you have one huge big tract, other times you have 10, 12 different tracts and you’ve got lots of things to kind of work with and negotiate and maybe one person takes tract one, two, and three, and the other one four, five, six.
So, partition in kind occurs when the division provides each owner a proportional share limited to cases where the property is easily divisible. Courts want to find land divisible, okay? They don’t like to determine that there’s no way this property can be divided. “We’re going to have to sell it.” So it can be complex exactly when there’s lots of parties, moving parts.
You may have five people and it doesn’t always have to be that everybody has to get their 20%. It may be these 60% are one side and these 40% are another, or whatever. So it varies.
If You Own 50% of 100 Acres – How Many Acres Do You Own?
Quick question just to keep you on your toes. There’s a prize for the one who gets this right. If you own 1/2 of 100 acres, how much do you own? How much do you own? Who said…who said 50? Who said 50 acres?
– You’re wrong. You’re right, okay, so you win. So if you own 1/2 undivided interest of 100 acres, you own, you know, 1/2 or 50% of 100 acres. You don’t own 50 acres. A lot of people will say that and I get it. I understand. But it’s not. That’s a good example. So in this scenario, sure, it may be easy to divide this land up between two people.
It’s 100 acres, let’s say, and it’s, you know, very homogeneous, I like to say. Let’s say it’s row crop or, you know, okay, there’s a creek in the middle, but hey, half the creek kind of looks like, yeah, maybe–maybe a court or commissioners would divide it, you know, 50 acres/50 acres. Normally you got something like this where–uh– Let’s say you got two people. How do you divide that?
Well, the person that ends up getting the house is probably going to get a lot less acreage, right? The person that gets the land by the creek, that’s low, it’s not as valuable, you can’t build on it. So all these different components of land will have different values. It all is driven by value. So if you’ve got two people on this, then each one should get more or less equivalent value.
Now automatically when I say value, you should think, “Man, well, I may think it’s higher than the other person.” Yes, value can oftentimes be very subjective.
Partition by Sale
I think of this as the house in town. Mom passed it on to five kids, and so it’s kind of hard to divide a house five ways, right? So in this scenario the judge would normally find that the property cannot be divided and would order it sold.
So, you know, we’ve had cases where we’re dealing with 25 people, 26 people, sometimes it’s hard to determine how many people, right? The land’s been passed on in the family for many years. Lots of folks didn’t have wills and half of some partition cases, it’s all about determining how many people do we have? What’s your interest in the land? We don’t know–unknown heirs.
Land Partition Procedure.
Land partition is different from other cases. If you know someone who is going through a partition, not to say you’re going to explain to them the partition procedure, but at least you kind of know what’s going on.
So it really starts out, there’s two trials in a partition case. First there’s the trial where–and of course, someone has to file a lawsuit, and the other side that, you know, didn’t file the lawsuit, they have to answer the lawsuit, and there can be back and forth. What do you call it–legal discovery back and forth, learning about the land.
But the first trial, the court determines if the land is partitionable or not. And if the judge says, “Yeah, I think this 100 acres “can be divided five ways.” Then he’s going to say, “It can be divided “and I’m going to appoint special commissioners.” Now these aren’t the county commissioners. Lots of people will say, “I know the county commissioner and he’s my friend.” Well, it’s not going to be the county commissioner.
Who Are the Special Commissioners
It’s going to be three special commissioners and they’re landowners in the community who hopefully are familiar with land. A lot of times they’re realtors or farmers or ranchers, depending on what the land is, what kind of land it is. And those special commissioners are tasked to divide the land, to make a report, a recommendation on how the land should be divided.
Yes, so how do the commissioners do that? Lots of different ways they can do that. I’ve seen a Harris County case. The commissioners never even went to the property ever. They didn’t even look at the property. They made a decision on how to divide the property and the court actually said, “That’s okay.”
Okay, so all the partitions that we’ve been involved with in this area, the commissioners always want to go out and look at the property. They drive the property and take a look at the property, sometimes multiple times. The commissioners typically want to hear from the lawyers. I always try to coordinate a meeting with my clients with the commissioners and sometimes we’re all in one big room. Sometimes that gets a little out of hand and so we try to separate the parties.
The commissioners come up with a report. I guess my experience has always been if you think there’s a reasonable way to divide the land, that’s probably not the way the special commissioners are going to do it. They’re going to do something completely different because everybody has their own thoughts and ideas on land.
We Always Try to Reach an Agreed Land Partition
We always suggest trying to reach an agreed land partition, you know, something that both sides can live with or all three different parties can live with. But at the end of the day if you can’t do that, yes, your commissioners will come up with a report, they’ll give it to the court, and either side can object to that report, and then the judge will determine whether the report was a fair division of the property. If he does, then it stands.
You can appeal that just like any other case. If the court determines, “You know what? Yeah, I don’t think “that was a very fair division of the property,” then what happens? You start all over. The judge appoints a whole new set of commissioners and you start all over. So very different procedure, that’s what I’m talking about.
We Represent Landowners
Our attorneys represent landowners in a variety of issues including condemnation and eminent domain, the partition of land, agricultural leases, landowner liability, and fence law issues. Call 800-929-1725 for an appointment or click this link to schedule an appointment online.