Partition of co-owned property in Texas

The law in Texas

Can a co-owner force a partition in Texas?

A joint owner or claimant of real property or an interest in it may compel partition under Property Code chapter 23 and the Texas Rules of Civil Procedure (Rules 756-771). The right is generally described as absolute but can be waived or contracted away. A partition case produces two judgments: the first fixes each owner's share, decides title questions and whether the property can be divided, and appoints commissioners; the second approves the commissioners' report and divides or sells the property. (Tex. Prop. Code § 23.001; Tex. R. Civ. P. 756; Tex. R. Civ. P. 760; Tex. R. Civ. P. 761)

Will the court divide the property or sell it?

The court decides whether the property can be fairly divided. If a fair and equitable division cannot be made, it orders a sale of the part that cannot be divided. Division is favored and the party asking for a sale must show that dividing would be impractical or unfair. This burden rule comes from the courts of appeals; no modern Texas Supreme Court decision squarely holds it. (Tex. R. Civ. P. 761; Tex. R. Civ. P. 770; Bowman v. Stephens, 569 S.W.3d 210 (Tex. App. 2018))

Who decides how to divide or value the property?

If the property can be divided, the court appoints three or more competent, disinterested commissioners (a majority may act). The clerk issues a writ of partition to the sheriff or constable to notify them. The commissioners divide the land into shares equal in value in proportion to the interests, and report in writing under oath; the clerk mails notice of the report to all parties. Any party may object within 30 days after the report is filed, and the objections are tried. The court's approval of the report is the second, final judgment. In heirs'-property cases the commissioners must also be impartial. (Tex. R. Civ. P. 761; Tex. R. Civ. P. 762; Tex. R. Civ. P. 768; Tex. R. Civ. P. 769; Tex. R. Civ. P. 771; Tex. Prop. Code § 23A.005)

Can a co-owner buy the property instead of a sale?

Texas general partition law has no election to take the property at appraisal. In heirs'-property cases only (chapter 23A), if any co-owner asked for a sale, the other co-owners may buy the sale-seekers' interests at the court-determined value by notifying the court within 45 days, with payment due no earlier than 60 days after notice. (Tex. Prop. Code § 23A.007)

Is there a minimum sale price?

Rule 770 contains no minimum-price requirement for an ordinary partition sale. In heirs'-property cases the broker offers the property at no less than the court-determined value. (Tex. R. Civ. P. 770; Tex. Prop. Code § 23A.010)

How is the property sold?

A court-ordered sale is for cash or on terms the court sets, either as under execution or by private or public sale through a receiver, and the proceeds are paid into court and divided by interest. The sale is completed by the court's confirmation and distribution order. In heirs'-property cases the sale must be an open-market sale through a broker unless the court finds sealed bids or an auction better for the co-owners as a group. (Tex. R. Civ. P. 770; Tex. Prop. Code § 23A.010; Tex. Prop. Code § 23A.011)

Who pays the attorney fees?

No statute separately authorizes attorney fees in a Texas partition action. Costs are divided among the parties in proportion to the value of the share each receives, and a court may, for good cause stated on the record, divide costs differently. (Tex. R. Civ. P. 778; Tex. R. Civ. P. 141; S.C. v. M.B., 650 S.W.3d 428 (Tex. 2022); Grimes v. Collie, 733 S.W.2d 338 (Tex. App. 1987))

Inherited property (“heirs property”)

Texas has adopted the Uniform Partition of Heirs Property Act (Tex. Prop. Code Ann. § 23A.001 et seq.). For property that qualifies as heirs property, the court must order an appraisal, give the other co-owners a chance to buy out a co-owner who wants a sale, and prefer dividing the property; a sale is generally an open-market sale.

How Texas compares

Partition rules differ from state to state. Here is Texas beside the other states we cover in full, on six points. For the partition statute and heirs-property status of every state, see partition laws in all 50 states and D.C.

Money between co-owners

What if one co-owner paid more of the taxes, mortgage or insurance?

A co-owner who pays more than his or her share of a mortgage or lien, taxes, insurance or necessary repairs is generally entitled to reimbursement from the other co-owners for their share, adjusted in the partition. The recovery may be offset by income or benefits the paying co-owner received from possession. (Wooley v. West, 391 S.W.2d 157 (Tex. Civ. App. 1965); Bowman v. Stephens, 569 S.W.3d 210 (Tex. App. 2018); Williams v. Shamburger, 638 S.W.2d 639 (Tex. App. 1982))

What if one co-owner collected the rent?

The equities between co-owners (reimbursements, credits and rents from third parties) are weighed in the first stage of the partition, when the court fixes shares. Rents a co-owner collects from third parties are shared in proportion to the interests. (Bowman v. Stephens, 569 S.W.3d 210 (Tex. App. 2018); Potka v. Potka, 205 S.W.2d 51 (Tex. Civ. App. 1947))

What if one co-owner lives there and keeps the others out?

A co-owner in possession generally owes no rent to the others unless there is an agreement or an ouster. Ouster requires unequivocal, unmistakable and hostile acts excluding the other co-owners; exclusive possession alone is not ouster. A 2026 memorandum opinion applies this rule (limited precedential weight). (Potka v. Potka, 205 S.W.2d 51 (Tex. Civ. App. 1947); Hardaway v. Nixon, 544 S.W.3d 402 (Tex. App.-San Antonio 2017, pet. denied); Herrera v. Talamantez, No. 04-24-00755-CV, 2026 WL 98117 (Tex. App.-San Antonio Jan. 14, 2026) (mem. op.))

What about improvements one co-owner paid for?

A co-owner who improved the property in good faith may have the improved part allotted to him or her if that is fair to the others; otherwise he or she may receive compensation. Without the others' consent, the credit is limited to the increase in value at the time of partition, not the amount spent. (Whitmire v. Powell, 103 Tex. 232, 125 S.W. 889 (1910); Williams v. Shamburger, 638 S.W.2d 639 (Tex. App. 1982); Bowman v. Stephens, 569 S.W.3d 210 (Tex. App. 2018))

What is owelty?

If the property cannot be divided into equal shares without hurting its value, the court may divide it into unequal shares and place a lien on the larger share for the difference (owelty). In heirs'-property cases the statute also allows equalizing payments in an in-kind division. (Sayers v. Pyland, 139 Tex. 57, 161 S.W.2d 769 (1942); Tex. Prop. Code § 23A.008(c))

The steps of a partition case in Texas

1. File the partition petition in the district court of a county where part of the land lies, naming every joint owner or claimant, with the civil case information sheet.Petition contents and mandatory venue. (Tex. R. Civ. P. 756; Tex. Civ. Prac. & Rem. Code § 15.011)
2. Record a notice of lis pendens with the county clerk and serve copies within three days.Lis pendens contents and service. (Tex. Prop. Code § 12.007)
3. Request citation for each defendant and serve it.Citation issued by the clerk; service by delivery or certified mail. (Tex. R. Civ. P. 99; Tex. R. Civ. P. 106)
4. For unknown or unlocatable owners, file the sworn due-diligence statement and publish citation in the county where the land lies; post the heirs'-property sign if required.Publication four weeks in the land county; sign within 10 days in possible heirs'-property cases. (Tex. R. Civ. P. 109; Tex. R. Civ. P. 116; Tex. Prop. Code § 23A.004)
5. If a published defendant does not answer, the court appoints an attorney ad litem.Ad litem for published-service defendants. (Tex. R. Civ. P. 244)
6. The court decides whether the property is heirs' property; if it is, appraisal and buyout steps follow before any sale.Heirs'-property determination, appraisal and buyout. (Tex. Prop. Code § 23A.003; Tex. Prop. Code § 23A.006; Tex. Prop. Code § 23A.007)
7. First judgment: shares fixed, title questions decided, divisibility decided, commissioners appointed (or sale ordered).First decree and appointment of commissioners. (Tex. R. Civ. P. 760; Tex. R. Civ. P. 761; Tex. R. Civ. P. 770)
8. Clerk issues the writ of partition; commissioners divide the land and file a sworn report.Writ, division and report. (Tex. R. Civ. P. 762; Tex. R. Civ. P. 768; Tex. R. Civ. P. 769)
9. Any party may object to the report within 30 days of its filing.30-day objection window. (Tex. R. Civ. P. 771)
10. Second judgment approving the report (division) or ordering sale through a receiver or as under execution.Approval of report; sale method. (Tex. R. Civ. P. 771; Tex. R. Civ. P. 770)
11. Motion and order confirming the sale and distributing proceeds; costs taxed by share value.Confirmation, distribution and costs. (Tex. R. Civ. P. 770; Tex. R. Civ. P. 778)

Settle it first: documents for Texas co-owners

Most co-ownership disputes end in an agreement, not a court sale. You choose the document that fits what you want to do.

• Joint Ownership Letter (guided interview, Texas version)
• Agreement of Co-Owners to Sell Jointly Owned Property (guided interview, Texas version)
• Buyout Agreement for Co-Owners (guided interview, Texas version)

FSP sells self-help documents. FSP is not a law firm, using FSP does not create a lawyer-client relationship, and FSP’s products are not a substitute for the advice of an attorney.

Official self-help resources

• Texas Judicial Branch: self-represented litigants
• TexasLawHelp.org
• eFileTexas