Landowner Rights Attorney Philip Hundl talks about his experiences with land partition cases, emphasizing the importance of understanding statutes and procedures. Key points include the role of special commissioners, appraisals, mediation, and the challenges of handling disputes among co-owners in land partition cases. Philip also touches upon the time frame, costs involved, and the need for creative solutions in mediation sometimes.

Call 800-266-4870 or text 979-320-9320 to meet with Philip regarding your land case. Our office is in Wharton County in El Campo, but we work with clients all over the State of Texas. We can arrange for your meeting to be in person, online or by phone.

Texas Land Partition – A Presentation to the Wharton County Bar Association

Summary of the Texas Land Partition Video

My Background in Wharton County

Thank you very much. My name is Philip Hundl. I’ve been practicing here for quite some time. I often hear Randy and Ben mention the number of years they’ve been around, and it astonishes me to reflect on how long I’ve been here myself. I’ve spent most of my life in Wharton County, where I grew up, and I’ve been practicing here for nearly two decades now.

I spent some time practicing at a large firm in both San Antonio and Houston. I went to the University of Denver for my law education. People often ask me why I chose Denver, and my response is, why not? Denver is a lovely place that everyone seems to appreciate. Interestingly, the majority of my classmates from law school decided to stay in Denver and did not leave.

It’s been incredibly enjoyable to practice here in Wharton County. I’ve been able to value the wide range of cases I’ve handled over the years, whether it was criminal, family, estate, probate—you name it, I did it. Although, it could be quite daunting at times due to the extensive learning and tasks involved, switching from criminal to civil procedures and back again was always challenging.

How I Developed a Law Practice in Helping Landowners

I’ve observed the more experienced and seasoned lawyers and noticed that they seemed to have it all figured out, often specializing and focusing on a particular area. I thought to myself that they seemed to have found their path. So over time, I made it a point to narrow down what I didn’t want to do and focus on discovering what I enjoyed. Finding what you enjoy in law can be challenging. It was during one of those weekends, not an uncommon one, where I was preparing for something on Monday and working on a Sunday, that I lost track of time and entered a state of flow. In that moment, I realized I needed to pay attention to this feeling because it indicated that I truly enjoyed what I was doing.

It was a land case, specifically an eminent domain case. My primary focus is on eminent domain work, dealing with condemnation cases on behalf of landowners, as well as land partitions. Around 20 percent of my practice involves land partitions, while the remaining portion is dedicated to representing landowners in land and eminent domain cases.

An Overview of Texas Land Partition

Regarding land partition cases, one thing that surprised me was that, while handling an increasing number of these cases across Texas, I noticed that not many lawyers are well-versed in the procedural aspects of these cases. Additionally, many judges aren’t particularly familiar with them either, likely because these types of cases are not very common. Currently, I am managing around a dozen land partition cases that are spread across various courts and are at different stages of the legal process. I’m going to focus on the main points regarding land partition cases.

When clients come in, one of the first things they typically ask is about the cost. Like with any case, the answer is, it depends. I don’t like giving that answer, but it’s the reality. I always explain to them that I follow certain steps in every land partition case and if everyone agrees the cost is relatively low. If not, the cost goes up.

Here are the steps I follow. First, we send out our proposal. Let’s say there’s a hundred acres of land and four children. In the proposal, we specify the section I want and the sections that can be allocated to the others. If everyone agrees with the division, it doesn’t cost much to proceed.

You could have a settlement agreement that might just require a simple letter, followed by a survey and preparation of deeds, and then you’re finished. However, it could also end up going through multiple stages that we’ll discuss further and potentially reach a lengthy conclusion. The cost for handling the same 100-acre land division could be substantial, whether it’s for 100 acres or just 10 acres, ranging anywhere from $100,000 to $200,000. Both judges here have experienced long, drawn-out partition cases as attorneys and lawyers. One of the longest land partition cases in Wharton County, which George Willis was involved in, lasted about 10 to 12 years, though I’m not entirely certain about the exact duration.

The Difference Between Chapter 23 and Chapter 23A of the Texas Property Code

Alright, let’s dive straight into this. Today, we’ll quickly review the relevant statutes. We won’t dwell too much on them, but it’s important to know whether you’re governed by Chapter 23 or Chapter 23A of the Texas Property Code. Previously, it was just Chapter 23 of the Property Code. You also need to be aware that there are certain rules of civil procedure that apply to partitions, so it’s important to understand those as well.

It appears that Chapter 23A was introduced in 2017, according to my review of the history. Chapter 23A refers to the partitioning of heirs’ property. If 20 percent or more of a property is owned by heirs—those who are related or have inherited the property from a family member—then it falls under the 23A category. In my experience, most partitions tend to fall under this classification. I’ve got a case where my client owns 80% and the other person, who isn’t a relative, owns 20% and that 20% fits under Chapter 23A. It’s important to know the relevant statutes for your case.

I also like to provide my clients with detailed steps and procedures, so they understand where they are in the process. I share anecdotal stories, often changing names and details for privacy. In one instance, I was the third attorney on a significant land partition case involving properties across three counties and numerous landowners. People often view such properties as their family legacy. There were five people in one group and eight in another, and they all genuinely believed that things were nearly finished, even though we hadn’t even started the first trial yet. I had to remind them that the journey was far from over. Then with that realization, everyone got much closer and managed to reach a settlement.

Steps in a Land Partition Case

Do You Have the Necessary Parties?

Let’s discuss the steps involved. Initially, there’s a first trial, which is crucial. Today, we’ll cover the key points: the steps and procedures, ethical considerations when co-owners are representing multiple individuals, and ensuring everyone is in agreement.

Appraisals, the proper methodologies, and preparing for and executing an effective mediation are crucial steps that many people often overlook or don’t handle correctly, which means they don’t truly give mediation a fair chance. Additionally, properly documenting and concluding the process is essential. So, let’s begin by asking, do you have all the necessary parties involved?

I learned this from Judge Estlinbaum. We had a case involving the partition of about 12 acres. He kept asking, “Do you have all the necessary parties?” Usually, a client will come in and say, “There are only four people involved.”

In the end, it turned out to be 26 people. Honestly, it was quite a challenge just figuring out who all the heirs were. This process needed an heirship proceeding, actually multiple proceedings and determinations. One side kept insisting that there were 27 people.

No, no, no, there are only 26. Well, there’s this one person, let’s call him Jeremy. Jeremy is an heir. At first, we didn’t think Jeremy was an heir. Actually, we did. In the end, we had a hearing to decide whether Jeremy was indeed an heir or not.

Certainly, there are situations where the divisions are straightforward and clear-cut. You have a deed, but often the title is not as clear as it might seem. This issue alone can take a significant amount of time to resolve; in our case, it took us about 18 months to 2 years just to gather all the necessary parties.

Audience Question: Do you need to return to probate court to make that determination?

You would handle it within this proceeding. Yes, an heirship within this proceeding. Yes.

Audience Question: So once that is completed, does it have the same impact as going through probate court?

Sure. You’ll obtain a court judgment identifying the heirs. Indeed, it’s about the heirs and partition in Chapter 23A.

What Are Some of the Differences in the Chapter 23A Procedure?

You have a court-ordered appraisal followed by a buyout process. Chapter 23A emerged because, historically, there were properties in urban areas owned by minorities, often with very small percentage interests. For instance, there might be 50 owners of a valuable retail block, and a shrewd investor would come along, purchase a 1 percent share, and then initiate a partition to persuade a court to mandate the sale of the property or arrange for its sale, allowing him to purchase it later at a lower price. Chapter 23A was designed to safeguard the interests of the heirs. Consequently, there is a clause stipulating that if you request the court to sell the property, your share can be bought out.

If you want the land divided, for instance 100 acres, and you desire your share of 20 acres, you won’t be compelled to sell it to another party under Chapter 23A unless you request the court to sell the entire 100 acres and split the proceeds. In that case, you could be subject to a buyout.

Land Partition Steps and Procedures
Can the Property Be Partitioned?

First, you have an initial trial. During this trial, the court decides whether the property can be divided by partitioning it in kind or not. What does the law state about this? According to the law, the court is obligated to attempt to find a method to make the property partitionable.

So, what does this imply? If someone approaches me with the scenario of having 50 acres of land shared among 10 people, and they’re unsure how to divide it, I’d suggest that the court would likely rule in favor of partitioning the land. On the other hand, if there is just one acre with a house on it and it’s owned by 20 people, I’d predict that the court would likely decide it cannot be partitioned and would instead opt for a sale.

In this case, the courts will look for a way to partition the property. However, practically speaking, dividing a house among 20 people is unfeasible. Thus, the court will likely conclude that the only viable solution is to sell the property.

He would arrange for it to be sold, and while there are various methods to do this, they would likely appoint a receiver, similar to a realtor, to handle the sale. The money from the sale, after deducting all expenses, would then be divided among the parties involved.

What else occurs during the first trial? In addition to determining whether the land can be partitioned, the appointment of special commissioners is also a typical step that everyone is aware of. But securing the appointment of a surveyor is another important element.

Appoint a Surveyor

Why would you need to hire a surveyor? It’s like any situation where multiple owners assume they know the property size, saying, “We all know it’s 100 acres.” But do they really know? Therefore, it’s crucial to have a surveyor accurately measure the property and determine the actual size. For instance, the surveyor might find out it’s actually 98 acres.

What you believed to be 95 acres is actually 100 acres, but a significant portion of it includes the surrounding roads as the property stretches into them. Moreover, it is crucial for the survey to document all existing improvements, such as roads, buildings, and various types of wells.

Water wells are often neglected, although they are important. Additionally, it’s crucial to include all easements on the survey, as the commissioners will use this information, along with various other details from the involved parties, to make their decisions. Accurate and up-to-date information is essential; relying on an outdated survey from the 1970s or a hastily drawn sketch on a napkin is not effective. Thus, it is crucial to appoint a surveyor and prepare a survey before the commissioners seriously consider the partition.

How the Special Commissioners Perform Their Duties

Additionally, special instructions play a key role in this process. Are the commissioners planning to visit the property? Will they inspect it? Are they going to meet with us? What’s the process? It’s not in this document, nor in the other one.

So, looking into case law, it’s surprising to find that decisions from Harris County indicate that it’s acceptable if the special commissioners don’t visit the property. There’s no need for them to even do that. So, if you’re representing a landowner and the special commissioners don’t even visit the property, you’re likely to have a landowner who is confused and questioning the situation. This is because the landowner wanted to accompany the special commissioners to highlight the unique features and characteristics of the property.

To proceed, you need to establish all the necessary steps in a sequence. This involves confirming that the land can be divided, appointing the three special commissioners, assigning a surveyor, and instructing the special commissioners on their duties. They need to inspect the property, but ultimately, everything depends on the judge’s approval.

Often, the parties involved will come to an agreement on these matters, but if they do not, you would request the court to direct the special commissioners accordingly. It is crucial to consider various factors during the process of dividing value. Additionally, it’s important to remember that the commissioners will conduct property visits, meet with landowners, review appraisals, and hold both formal and informal hearings and meetings.

How Are the Special Commissioners Selected?

I have handled them in various ways. I have organized several special commissioner meetings where the commissioners would alternately meet with each party, gather information, and then switch to meet with the other party. Additionally, I had one instance right here in this building, where three commissioners spent about an hour listening to both sides present their evidence in what constituted a hearing.

You might wonder who selects these commissioners. If both parties can agree on the special commissioners, that’s one option. If they can’t agree, the judge will often ask for suggestions and then make the final selection. Ultimately, the judge decides. When the court decides to appoint commissioners, there have been instances where the judge requests each party to submit three names. Then, the judge chooses three names from those submitted. Recently, I participated in a process where we chose one commissioner, they chose another, and then the judge made a selection as well.

Is it possible for an attorney to be assigned the role of a special commissioner? So, I’ve approached both of of the judges here today to appoint me as a special commissioner for partition cases. They usually laugh and say, “But you’re typically the one bringing up partition cases.” Generally, the commissioners are landowners from the community or the county who have substantial knowledge about land and real estate. This often includes realtors or, if it pertains to farmland, an experienced farmer who owns and manages a significant amount of farmland. You often encounter many complexities in partition cases.

A farmer might own land across three different counties, and perhaps it’s all part of a ranch. This specific property is designated for activity X related to the ranch. So, we need to figure out how to handle that since we are all still involved in ranching. There are many details to consider, and we need people who understand these complexities, whether the land is irrigated or not, among other factors.

What I mean is that in cases of condemnation or eminent domain, three special commissioners are appointed to determine the property value. This process exists because if someone disagrees with their valuation, they can challenge it, leading to normal civil litigation. It’s somewhat similar to this situation. The origin of this practice likely dates back to when these three individuals made the final decision, and that was the end of it.

Rather than having a jury of six or twelve members, let’s simplify it by having a jury of three. I believe that was the reasoning behind the decision. However, I’m curious about the historical background of this approach, since it’s different from other legal proceedings we typically have, aside from eminent domain cases.

Typically, there are individuals who grasp the intricacies of land and its valuations. This understanding provides landowners with some reassurance, as they feel heard and acknowledged in what tends to be a more informal process. The goal is for the clients to feel that their concerns are being taken into account. However, in particularly complex cases, when my clients have a firm stance and say, “This is the only way it can be,” it comes down to determining what is desired in any trial situation.

Certainly, you have to keep in mind that this process often involves family members, and many of the conflicts stem from issues unrelated to the land itself. However, disputes over land have emerged. Sometimes the situation becomes complicated due to the involvement of numerous people. For instance, I dealt with a partition that, fortunately, involved only three individuals, all of whom were in their 80s.

Out of the three individuals, two opposed the partition while my client supported it. My client expressed a desire to resolve the matter promptly, emphasizing that if they didn’t settle it soon, the number of involved parties could swell from three to potentially 24, which was worrying.

Courts usually state that if the parties have reached an agreement after the first trial, that’s excellent. Just submit the agreed order for my signature, and I’ve handled that sort of situation before. However, there are instances where no agreement can be reached, necessitating the conduct of the initial trial. I have also dealt with such scenarios.

What Happens After the Special Commissioners Deliver Their Report?

If everyone is satisfied with the special commissioner’s report and there are no objections, the final judgment will be made, and the matter will be settled. But really, how often is everyone completely satisfied, right? Usually, if you’re unhappy with the outcome, you can raise an objection. You can argue that the division wasn’t fair or that it didn’t adhere to the specific instructions given in the order. I’ve done this myself before.

I’ve experienced it in both scenarios. Recently, I had one instance where no one opposed the report, and it was quite pleasant. On other occasions, commissioners have informed both lawyers about their considerations, saying they might do either option A or B. Sometimes, option A isn’t favorable for us, but option B works out well. So in those situations, we feel pretty confident.

Then the special commissioners proceed to do C, which isn’t what we desire. Therefore, I believe it would sometimes be beneficial if special commissioners could suggest doing A or B, but encourage everyone to attempt to resolve the issues among themselves. When it comes to land partitions and discussions about mediation, achieving a mediated settlement agreement typically yields the best outcome since the parties are more familiar with the land than anyone else.

Typically, there are individuals among the co-owners who grasp the intricacies of land and its valuation. This provides landowners with some assurance that they are understood and heard, making the process more informal. When dealing with particularly complex issues, it’s important for clients to feel that their perspectives are acknowledged. In challenging cases, my clients have often stated that there is only one feasible solution, which aligns with their desire to be truly listened to in any trial situation.

You aim to present all the evidence and do your absolute best, and that’s exactly what I did in that situation. I put everything out there, hoping nothing would be overlooked, and that a sensible decision would be made. So, when something unexpected happens, like I previously mentioned, and instead of choosing A or B, they go with C, it catches everyone off guard.

What ended up happening in that situation? We ended up going to another mediation session. In partition cases, it’s quite common to have multiple mediation sessions. I’ve personally been involved in two, even three mediations for such cases. In one instance, I even requested Randy to recommend a mediator who specializes in partition cases.

We hired a lawyer who wasn’t a mediator, but was involved in the Duncan partition case. He made it very clear to everyone just how long the process might take. When representing co-owners, it’s important from an ethical standpoint to ensure that everyone is on the same page. You can’t have a situation where, in the middle of dividing assets, someone suddenly changes their mind and says they really want something. This can lead to clients fighting over the same property or wanting to leave your group. So, be cautious about this.

The Possibility of Conflicts of Interest

Always consider the possibility of conflicts of interest. Essentially, what they are saying is that if everyone involved doesn’t share the same goal, then they are out. In fact, they will withdraw from the situation entirely. Therefore, always be ready to step back if necessary.

What I continually need to stress is that in the first trial, the commissioners carry out their duties and provide a report. If we are dissatisfied with their report, anyone can file an objection. Subsequently, there will be a second trial where the judge will address and correct any issues with the report.

If things don’t go as we desire, we can persuade the judge to make certain decisions or get a jury involved. However, it’s essentially a matter of determining whether something is fair or if the order was followed. If the answer is no, what happens next? In that case, we’ll send it back and appoint a new panel of three people instead of the original one.

And begin anew. Thus, I always have to remind myself to continue persevering for a while. Naturally, if in the second attempt it is determined to be a fair division and the orders are adhered to, then, of course, one can appeal to the Court of Appeals.

Audience Question: How are the fees handled? How are they split among the co-owners?

Let’s assume there are five people involved, with four on one side and me representing a single individual. They might suggest sharing the cost equally, splitting it 50/50. Naturally, they would ask for that. However, legal precedents clearly state that the division should be proportional. Therefore, my client isn’t responsible for paying 50% of the cost, but only one-fifth.

So, one-fifth would be relevant if there were five people involved. Remember, generally speaking, it follows a pro-rata basis. According to Chapter 23A, the court will appoint an appraiser to assess the entire property, such as 100 acres. Often, I don’t find much value or utility in this process, but that’s the standard procedure. However, the parties involved can agree to waive this requirement or decide to use the CAD value for the purposes of section 23A.

I’ve requested you to handle that once in a partition case, Randy, and naturally, the opposing party refused, saying we shouldn’t do it. Hence, it didn’t happen. Nonetheless, it would have been a more cost-effective approach, avoiding an expense of around $5,000 or so.

One approach we’re currently using in another case is having the same appraiser who initially valued the entire property reevaluate specific subparts for each party in a proposed partition. Both sides have agreed to this method as a way to potentially save money on appraisals.

You might end up with various appraisers in a situation: one appointed by the court, another hired by one party, and a different one chosen by the opposing party. That’s if there are only two sides to consider. If there are three or four parties involved, you could have three or four distinct appraisers.

Now that we’ve agreed on one occasion that we’re going to use a specific appraiser, let’s consider a scenario involving 3,000 acres. They believe that these 3,000 acres can be divided into six distinct tracts, whereas we believe it should be split into 12 distinct tracts.

If you split the land into six parcels, it has one value. If you divide it into 12 parcels, it has a different value. This is significant. We’ve agreed that the appraiser will assess the land’s value based on both six and 12 parcels before we go into mediation. Today, I’ll be meeting with a client to discuss this, asking him about the configuration he prefers for the entire tract. Our appraiser will then estimate the approximate acreage based on the value.

With appraisals, it’s crucial to obtain them because many clients, before even consulting a lawyer, often say, “I’ve already had it appraised.” However, they’ve usually had the entire property appraised. This isn’t helpful in a partition case since you need to determine the value of your specific portion compared to what the other party will receive.

What’s the Value of Mediation in Land Partition Cases?

Let’s talk about mediation. When you go into mediation, it’s essential to be well-prepared with all the necessary tools. For instance, if you’re dealing with a situation involving 100 acres of land and there’s a unique split where one person wants a quarter and the other wants three-quarters, you need a good way to map it out and estimate the sizes. Sometimes, during mediation, people will start negotiating and changing their demands, as Ashley Tegler and I experienced when someone requested 30 acres but then agreed to settle for 28.

Okay, now we need 20. And for sure, your client is going to ask what that looks like. How does it appear on a map? So you’ll need an aerial view; you need to be able to visualize it. Typically, CAD maps are very useful for drawing, measuring, and estimating. However, you’ll also need the capability to do this during a mediation session and have a way to print it out.

When finalizing an agreement, it’s essential to specify the terms clearly. For example, the agreement should state that Hundl’s client will receive 28 acres, depicted in a particular shape shown in exhibit A or B. This clarity is crucial. Furthermore, the exact division of the property cannot be surveyed before or during the mediation process; it must be done afterward. Additionally, both parties should agree on various minor details to ensure a comprehensive understanding.

Often, people involved in farmland, ranching, or any large tracts of land agree that these areas should be fenced. The questions then arise: Who will be responsible for the fencing? Which individual or group will take on this task? What will the expenses be? Additionally, deciding on and agreeing upon a surveyor is also crucial.

However, I must confess that I’m not a fan of arbitration. When I was working at Fulbright and Jaworski, I was advised never to include an arbitration clause in any agreement. Nevertheless, in the context of mediation agreements involving partitions, I do appreciate having an arbitration clause that designates the mediator as the arbitrator. This is because the mediator would have already spent an entire day with the parties and understood all the issues and the situation. If any minor disagreements arise, the mediator generally performs exceptionally well as an arbitrator.

Concluding the Land Partition Case

Finally, it’s about concluding the process. There are typically two methods I’ve observed: either a final judgment or a dismissal. It’s important to ensure that the partition deed is properly signed and includes all necessary details. If easements are needed to access the tract, make sure they are clearly described in the deed.

We had a disagreement about the width of the easement. It was supposed to be the width of the existing road, but there was confusion over whether it was 30 feet wide or 28 feet wide. It may not seem like a big issue, but it was important to someone, so we had to resolve it through arbitration.

I suppose they would rather have deeds, but ensuring payment for the commissioners and surveyors is often an issue. Clients frequently end up spending much more than they expected and reach a point of frustration. It’s crucial to make sure both commissioners and surveyors receive their payment. Even if you have to pay for it yourself, you wouldn’t want the commissioners to end up without compensation. I’ve seen that happen before.

Audience Question: What would be a short timeframe for a partition?

A two-year timeline for the partition is likely appropriate. This period is necessary because appraisers and other professionals involved in the process typically require a significant amount of time. It’s important to note that they are not evaluating the entire property but rather the specific partition being proposed. Their assessment needs to ensure that the partitioned value is equal and fair.

There’s a lot more I could discuss about the procedures. Just make sure to thoroughly read the 23A and, as Judge Sklar often advised, read everything carefully and adhere to the rules.

Get the Experienced Help You Need

A land partition case is a complex and often lengthy undertaking. If you are a Texas landowner involved in a possible land partition or the division of undivided interests in land, you need experienced legal help. Call 800-266-4870 or text 979-320-9320 to arrange a meeting with Philip. You can also reach us through our Contact form.

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