Tex. Prop. Code §§ 23.001, 23A.003, 23A.006, 23A.007, 23A.008; Tex. R. Civ. P. 756–771
Partition of real property in Texas — an absolute right, unless the land is heirs' property
A claim in Texas district and county courts · Last verified August 26, 2026
Partition is the exit from co-ownership. Under Property Code § 23.001, a joint owner or claimant of real property, an interest in real property, or personal property "may compel a partition of the interest or the property among the joint owners or claimants."
The right is absolute. The holder of a one percent interest can force the issue, and the other owners cannot vote it down. What they can affect is the form — whether the land is divided or sold, and at what price.
What the claim is
You own property with other people, you want out, and they will not agree to sell or to buy you out.
Where the right comes from
Property Code chapter 23 for general partition; chapter 23A, the Uniform Partition of Heirs' Property Act, where the tract qualifies as heirs' property; and TRCP 756 through TRCP 771 for the procedure.
What a plaintiff has to prove
- Joint ownership or claim to the property; and
- The share each owner holds.
That is the whole case in chief. Partition suits are won on the pleadings and lost on the accounting.
Venue is the district court of a county where any part of the land lies, under § 23.002(a). Personal property goes to a court with jurisdiction over its value.
How the case runs — the two-decree structure
A Texas partition is tried in two stages, and that surprises people who expect one hearing.
First decree. The court determines who owns what share, whether the property is susceptible of partition in kind, and appoints commissioners under TRCP 761. This decree is appealable even though the case is not over.
Commissioners' report. The commissioners — three or more, disinterested, of the county — go to the land, divide it, and report back under TRCP 769. Objections are heard.
Second decree. The court confirms or rejects the report and enters final judgment. Under § 23.004(b), a decree confirming the report gives each recipient title equivalent to a general warranty deed from the other parties.
If the property cannot be divided in kind without prejudice to the owners, the court orders a sale and divides the proceeds by share.
Heirs' property — where chapter 23A takes over
Since 2017, a partition suit involving inherited family land runs on different rules, and the court must ask the question on its own.
Section 23A.003(a): in an action to partition under chapter 23, "the court shall determine whether the property is heirs' property. If the court determines that the property is heirs' property, the property must be partitioned under this chapter unless all of the cotenants otherwise agree in a record."
Heirs' property is defined in § 23A.002(5) as real property held in tenancy in common where, at filing: there is no agreement binding all cotenants governing partition; one or more cotenants acquired title from a relative; and either 20 percent or more of the interests are held by relatives, 20 percent or more are held by someone who took title from a relative, or 20 percent or more of the cotenants are relatives.
The chapter then imposes four protections:
Notice by posting. Where the plaintiff seeks citation by publication, § 23A.004(b) requires a conspicuous sign posted on the property within 10 days of the heirs'-property determination, and maintained while the action is pending.
A court-ordered appraisal. Under § 23A.006(d), the court appoints "a disinterested real estate appraiser to determine the fair market value of the property assuming sole ownership of the fee simple estate." Parties get notice of the appraised value and 30 days to object, and the court holds a valuation hearing whether or not anyone objects.
A cotenant buyout. Under § 23A.007, if any cotenant requested a sale, every cotenant who did not request one may elect to buy out those who did. The election is due within 45 days of the court's notice. The price is the appraised value of the whole parcel multiplied by the selling cotenant's fractional interest — no discount for a minority share. Electing cotenants then have at least 60 days to pay into the registry of the court.
A partition-in-kind default. Under § 23A.008(a), the court "shall order partition in kind" unless it finds, on the seven factors in § 23A.009, that doing so would substantially prejudice the cotenants as a group. Those factors include whether division would materially reduce total value, how long the family has owned or possessed the land, a cotenant's sentimental attachment including ancestral value, the use a cotenant makes of the property, and who has been paying the taxes and upkeep. No single factor is dispositive.
An open-market sale. If a sale is ordered, § 23A.010(a) requires an open-market sale through a broker at no less than the appraised value, unless the court finds sealed bids or an auction would be more economically advantageous to the cotenants as a group.
Together these replace the courthouse-steps auction that let a buyer acquire a fractional interest cheaply and force the sale of a family tract at a fraction of its worth.
How long you have to file
There is no deadline. The right to partition is an incident of co-ownership and lasts as long as the co-tenancy does.
The exception is the co-tenant who has been repudiating the others' interests. Where one owner ousts the rest and holds openly and adversely, the adverse possession periods in CPRC §§ 16.024 through 16.026 can run, and the co-tenancy can be lost.
What has to happen before you file
Nothing. In an heirs'-property case, the 45-day buyout election is the deadline that matters, and it runs after filing rather than before.
What the claim pays
No damages. Partition divides property; it does not compensate anyone for anything.
A share of the land, in a partition in kind, and where the shares cannot be made equal in value, § 23A.008(c) lets the court order owelty — a payment from one cotenant to another to even up the division.
A share of the proceeds, in a sale.
An access easement. Under § 23.006, unless waived, the commissioners must grant a non-exclusive access easement over a partitioned tract to reach an adjoining tract with no road access — the answer to the landlocked parcel.
An accounting, in equity, for taxes, insurance, mortgage payments and necessary repairs one cotenant paid, and for rents another collected. This is where the money in a partition case sits.
Costs, not attorney's fees. Section 23.005 directs the court to award the commissioners and any surveyor a reasonable fee, taxed and collected as court costs. There is no attorney's fee provision in chapter 23, and each side ordinarily pays its own lawyer.
Who can be sued
Every cotenant. All owners of an interest must be parties, which is why heirs' property cases so often begin with an heirship determination to find out who the owners are.
Lienholders, where their interests will be affected.
Common defenses
- A binding written agreement not to partition, which is the one complete answer.
- The plaintiff is not a cotenant — a title dispute, which turns the case into a trespass to try title suit.
- The shares are wrong, which contests the first decree rather than the right.
- The property should be divided rather than sold, or the reverse.
- An accounting offset for taxes, repairs, improvements or rents.
What people get wrong
Refusing to sell does not stop a partition. A co-owner cannot veto it. The majority cannot vote it down and the minority cannot be locked in.
Inherited land is treated differently. If the tract is heirs' property, the court has to say so and apply chapter 23A, which gives the family a buyout right and a preference for division in kind.
The buyout right is conditional. It arises only where some cotenant asked for a sale, and only the cotenants who did not ask may buy.
There is no discount for a fractional interest. Section 23A.007(c) prices the buyout at the appraised value of the whole multiplied by the fractional share.
Partition does not settle who paid the taxes. That is the accounting, and it is separate.
Where it came from
Partition is one of the oldest remedies in the law of land, and Texas has always treated it as a right rather than a matter of discretion — a consequence of the view that no one should be forced to remain in common ownership with someone else.
That absolute quality had a cost, and it fell heaviest on families who inherited land without a will. A single fractional interest bought from one heir gave a stranger the power to force a courthouse auction, at which the land routinely sold for far less than it was worth. The Uniform Partition of Heirs' Property Act was written to close that route, and Texas adopted it in 2017.
The Act does not take away the right to partition. It changes the machinery — appraisal before sale, family first refusal, division preferred over sale, open market preferred over auction — so that the right cannot be used as a tool for acquiring land cheaply.
Common questions
Can my sibling force the sale of the house we inherited?
They can force a partition. If the property is heirs' property, you have the right to buy out their share at the appraised value first, and the court must prefer dividing the land over selling it.
Is there a deadline to file a partition suit?
No. The right lasts as long as the co-ownership does.
Can I refuse to sell?
Refusing does not defeat the suit. It affects whether the property is divided or sold, and the price.
Do I have to pay a discount for owning only part of the property?
No. In an heirs'-property buyout the price is the appraised value of the entire parcel multiplied by the selling cotenant's fractional interest.
Can I recover the taxes and repairs I have been paying?
Yes, through the equitable accounting that accompanies the partition.
Are attorney's fees recoverable?
Generally no. Chapter 23 provides for the commissioners' and surveyor's fees as court costs, not for attorney's fees.