This video is part of a land partition presentation on Agriculture Law given by Philip Hundl at the Brazoria County Extension office. If you’d like to meet with Philip, please call our office at 800-266-4870 or text 979-320-9320. Our offices are in Wharton County, but Philip helps landowners all over Texas. Meetings can be online, by phone or in person.
Summary of the Overview of Land Partition Video
Alright, partitions. As I mentioned, I do a lot of land litigation. One component of land litigation is partitions of undivided land. Many people own undivided interests in land with their siblings, cousins, or others. Sometimes they feel stuck, thinking, “Oh no, I have a 10 percent or 20 percent undivided interest in this land, and that’s how it will always be.”
Well, you can partition the land. What does that look like? There are two types: partition in kind and partition by sale. Partition in kind is the most common, especially with rural land. For example, we had a 3,000-acre ranch that was partitioned. Sometimes you have one large tract; other times you have multiple tracts to work with and negotiate. One person might take tracts 1, 2, and 3, while another takes 4, 5, and 6.
Partition in kind occurs when the division provides each owner a proportionate share. This is limited to cases where the property is easily divisible. Courts usually prefer to find land divisible rather than determining it cannot be divided and must be sold.
It can be complex when there are many parties involved. You may have five people, and it doesn’t always mean everyone gets their exact percentage in acreage. For instance, 60 percent may go to one side and 40 percent to another.
If you own one-half of 100 acres, how much do you own? Who said 50 acres? You’re wrong. If you own a half undivided interest in 100 acres, you own one-half or 50 percent of 100 acres. You don’t own 50 acres. Many people think that way, but it’s incorrect.
In a scenario where the land is easily divisible, such as 100 homogeneous acres with a creek in the middle, courts or commissioners might divide it into two equal parts.
When dividing land between two people, the person who gets the house will likely receive less acreage. The person who gets less valuable land by the creek might get more acreage. All these components of land have different values, and it’s all driven by value.
If you have two people involved, each should get more or less equivalent value. Value can often be subjective.
Partition by sale usually involves properties like a house in town inherited by multiple children. It’s hard to divide a house five ways, so a judge might find the property cannot be divided and order it sold.
We’ve had cases with 25 or more people involved. Sometimes it’s challenging to determine how many people are involved, especially when land has been passed down without wills. Half of some partition cases involve determining the number of heirs and their interests.
Partition procedures are different from other cases. There are two trials in a partition case. First, someone files a lawsuit, and the other side responds. There can be back-and-forth legal discovery about the land.
The first trial determines if the land is partitionable. If the judge thinks the land can be divided, special commissioners are appointed to handle the division. These aren’t county commissioners but three special commissioners who are community landowners familiar with land.
Special commissioners divide the land or recommend how it should be divided. They may inspect the property multiple times and usually want to hear from the lawyers involved.
Commissioners come up with a report. If you think there’s a reasonable way to divide the land, the special commissioners might do something completely different because everyone has their own ideas about land.
We always suggest trying to reach an agreed partition that all parties can live with. If that’s not possible, the commissioners’ report goes to the court. Either side can object to it, and the judge will determine if it was fair.
If the judge finds it fair, it stands. You can appeal like any other case. If not, you start over with new commissioners appointed by the judge.
This procedure is very different from others, which is why I’m discussing it.
For example, in Harris County (Houston), there was a case where the commissioners never visited the property but still made a decision on division which the court accepted. However, in most cases in our area, commissioners prefer to visit and inspect the property multiple times before making recommendations.
Commissioners typically want to meet with lawyers and clients to understand their perspectives. Sometimes everyone meets together; other times, it’s better to keep parties separate to avoid conflicts.
Ultimately, commissioners draft a report on how they believe the property should be divided. If an agreement can’t be reached among parties beforehand, this report becomes crucial. Either side can object to it, leading to further judicial review to ensure fairness.
If deemed unfair by the judge, new commissioners are appointed, restarting the process. Therefore, understanding these nuances is essential for anyone involved in land partition cases.
