Can my brother force me to sell property we jointly own if I can not afford a lawyer?
02/21/2009 - Category:Real Property - Partition - State: OK #15319
Should I go to court without representation? I have property in Texas that my brother is 1/2 owner. How can he force me to sell the property? I am holding out because he hasn't given me an accounting of what was sold, who bought it or any type of receipt. I am unable to get a lawyer. They say they know him, from high school. He's greedy. He wants control. He's cheated me out of $200,000 but I cannot get representation and we go to court March 4, 2009. Can He make me sell? Not even his executor will give me information. What do I do?
A partition action is a court action to divide property. An action for partition usually arises when a property is jointly owned and there is a dispute as to how to divide property, or in a dispute as to whether property should be sold. One co-owner of real property can file to get a court order requiring the sale of the property and division of the profits, or division of the land between the co-owners, which is often a practical impossibility. Normally, a partition order provides for an appraisal of the total property, which sets the price for one of the parties to buy out the other's half. The partition statutes govern actions for partition of real property, but the partition statutes do not apply to property divisions under the Family Law Act or in other types of cases specifically governed by other statutes. A partition action may be initiated and maintained by any of a co-owner of personal property; an owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates. Generally, a partition action may be maintained only by a person having the interest in the property, however, an equitable interest, is sufficient to support a partition action. A 'partition in kind' refers to land partitioned conveniently and equitably between or among the owners. Alternatively, it must be sold as a single parcel and the proceeds divided among the owners. If two or more people who own a property as tenants in common or if people who are not married to each other own a property as joint tenants with right of survivorship develop a dispute concerning the property, any owner may bring a partition action with the court to get the property divided between owners. While the lawsuit is pending, all owners will have equal access to and interest in the property. This arrangement applies regardless of whether the mortgage is in one owner's name or the name of all owners.
The following are Texas statutes:
§ 23.001 PROP. Partition
A joint owner or claimant of real property or an interest in real property or a joint owner of personal property may compel a partition of the interest or the property among the joint owners or claimants under this chapter and the Texas Rules of Civil Procedure.
§ 23.002 PROP. Venue and Jurisdiction
(a) A joint owner or a claimant of real property or an interest in real property may bring an action to partition the property or interest in a district court of a county in which any part of the property is located.
(b) A joint owner of personal property must bring an action to partition the property in a court that has jurisdiction over the value of the property.
§ 23.003 PROP. Effect on Future Interests
A partition of real property involving an owner of a life estate or an estate for years and other owners of equal or greater estate does not prejudice the rights of an owner of a reversion or remainder interest.
§ 23.004 PROP. Effect of Partition
(a) A person allotted a share of or an interest in real property in a partition action holds the property or interest in severalty under the conditions and covenants that applied to the property prior to the partition.
(b) A court decree confirming a report of commissioners in partition of real property gives a recipient of an interest in the property a title equivalent to a conveyance of the interest by a warranty deed from the other parties in the action.
(c) Except as provided by this chapter, a partition of real property does not affect a right in the property.
§ 23.005 PROP. Fees
The judge of a court that hears an action to partition real property shall examine the report of the commissioners appointed to partition the property and shall determine from the report and from evidence submitted by the parties the complexity and difficulty of making the partition. The court shall then award the commissioners, and any surveyor appointed by the court or retained by the commissioners, a reasonable fee for the services rendered. The fees awarded shall be taxed and collected as costs of court in the same manner as the other costs in the action
§ 23.006 PROP. Access Easement for Partitioned Property
(a) Unless waived by the parties in an action to partition property under this chapter, the commissioners appointed to partition property shall grant a nonexclusive access easement on a tract of partitioned property for the purpose of providing reasonable ingress to and egress from an adjoining partitioned tract that does not have a means of access through a public road or an existing easement appurtenant to the tract. The order granting the access easement shall contain a legal description of the easement.
(b) Unless waived by the parties in writing in a private partition agreement, the property owner of a partitioned tract that has a means of access through a public road or an existing easement appurtenant to the tract shall grant in the private partition agreement a nonexclusive access easement on the owner's partitioned tract for the purpose of providing reasonable ingress to and egress from an adjoining partitioned tract that does not have a means of access through a public road or an existing easement appurtenant to the tract.
(c) The access easement may not be a width greater than a width prescribed by a municipality or county for a right-of-way on a street or road. The access easement route must be the shortest route to the adjoining tract that:
(1) causes the least amount of damage to the tract subject to the easement; and
(2) is located the greatest reasonable distance from the primary residence and related improvements located on the tract subject to the easement.
(d) The adjoining tract owner who is granted an access easement under this section shall maintain the easement and keep the easement open for public use.
The following are Oklahoma statutes:
§ 12-1501.1. Petition for Partition — Contents — Proof Required.
A. When the object of the action is to effect a partition of real property, the petition must describe the property and the respective interests of the owners thereof, if known.
B. 1. Except as provided for in this subsection, in any action involving the partition of a mineral estate, in addition to the requirements of subsection A of this section, the petition shall specify and the plaintiff shall establish at trial by a preponderance of the evidence that:
a. one or more of the co-owners of the mineral estate are frustrating the development objective of the plaintiff for the estate; and
b. an order of the Corporation Commission to pool and develop said minerals pursuant to Section 87.1 of unitization created pursuant to Sections 287.1 the Oklahoma Statutes would not effectuate a realization of the development objective.
The provisions of this subsection shall not apply to any action involving the partition of a mineral estate, if the person requesting the partition owns the surface estate or any part thereof and also owns an interest in the mineral estate.
§ 12-1502. Contents of Reasonable Certainty in Petition.
If the number of shares or interests is known, but the owners thereof are unknown, or if there are, or are supposed to be, any interests which are unknown, contingent or doubtful, these facts must be set forth in the petition with reasonable certainty.
§ 12-1503. Creditors with Specific or General Liens May be Made Parties.
Creditors having a specific or general lien upon all or any portion of the property, may be made parties.
§ 12-1504. Answer — Contents.
The answers of the defendants must state, among other things, the amount and nature of their respective interests. They may also deny the interests of any of the plaintiffs, or any of the defendants.
§ 12-1505. Court Shall Make Order Specifying Interests of Respective Parties.
After the interests of all the parties shall have been ascertained, the court shall make an order specifying the interests of the respective parties, and directing partition to be made accordingly.
§ 12-1506. Appointment of Commissioners to Make Partition.
Upon making such order, the court shall appoint three commissioners to make partition into the requisite number of shares.
§ 12-1507. Allotments.
For good and sufficient reasons appearing to the court, the commissioners may be directed to allot particular portions to any one of the parties.
§ 12-1508. Commissioner to Take and Subscribe an Oath.
Before entering upon their duties, such commissioners shall take and subscribe an oath that they will perform their duties faithfully and impartially, to the best of their ability.
§ 12-1509. Duty of Commissioners — Report — Notice of Time Limit for Filing Exception or Election.
A. The commissioners shall make partition of the property among the parties according to their respective interests, if such partition can be made without manifest injury. But if such partition cannot be made, the commissioners shall make a valuation and appraisement of the property. They shall make a report of their proceedings to the court, forthwith. For the purpose of this section the term "party" shall mean one who has been adjudged to own an undivided interest in the property involved in the action.
B. Within ten (10) days after the report of commissioners is filed with the court clerk, the attorney for the plaintiff shall forward by certified mail to the attorney of record for every other party in the case and to each party not represented by an attorney, a copy of the commissioners' report and a notice stating that the time limit for filing an exception or an election to take the property at the appraisement, if partition cannot be made, is not later than twenty (20) days from the date the report was filed. Before the expiration of the said twenty (20) days, the court may fix a different and longer period for the filing of an election. The mailing of notice as required herein shall be certified by affidavit to be filed, attached to the original notice. If a party has been served by publication, the notice of said time limit shall be published in one issue of a newspaper qualified to publish legal notices, at least ten (10) days prior to the expiration of the date to file exception or election.
C. The time limit for filing an exception or an election to take property at appraisement, as prescribed in subsection B of this section, shall be calculated from the date the report of the commissioners is filed in the case. On failure of the attorney for plaintiff to give notice within the time prescribed in subsection B of this section, the court, on application of any party, may extend the time for filing an exception or an election for the period not to exceed twenty (20) days from the date the application is heard.
§ 12-1510. Filing of Exceptions to Report — Setting Aside of Report.
Any party may file exceptions to the report of the commissioners, and the court may, for good cause, set aside such report, and appoint other commissioners, or refer the matter back to the same commissioners.
§ 12-1511. Judgment.
If partition be made by the commissioners, and no exceptions are filed to their report, the court shall render judgment that such partition be and remain firm and effectual forever.
§ 12-1512. Purchase at Appraised Value.
If partition cannot be made, and the property shall have been valued and appraised, any one or more of the parties may elect to take the same at the appraisement, and the court may direct the sheriff to make a deed to the party or parties so electing, on payment to the other parties of their proportion of the appraised value. Such election shall be filed within twenty (20) days of the filing of the commissioners' report provided that the court may, before expiration of the said twenty (20) days, fix a different and longer period for the filing of elections.
§ 12-1513. Order for Sheriff to Sell Property.
If none of the parties elect to take the property at the valuation, or if several of the parties elect to take the same at the valuation, in opposition to each other, the court shall make an order directing the sheriff of the county to sell the same, in the same manner as in sales of real estate on execution; but no sale shall be made at less than two-thirds (2/3) of the valuation placed upon the property by the commissioners.
§ 12-1514. Return of Proceedings — Sheriff to Execute Deed.
The sheriff shall make return of his proceedings to the court, and if the sale made by him shall be approved by the court, the sheriff shall execute a deed to the purchaser, upon the payment of the purchase money, or securing the same to be paid, in such manner as the court shall direct.
§ 12-1515. Costs and Fees.
The court making partition shall tax the costs, attorney's fees and expenses which may accrue in the action, and apportion the same among the parties, according to their respective interests, and may award execution therefor, as in other cases.
§ 12-1516. Power of Court to Make Order.
The court shall have full power to make any order, not inconsistent with the provisions of this article, that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.
§ 12-1517. Sale of Property that Cannot be Partitioned — Procedure.
A. In addition to other provisions of law, if, upon the filing of the commissioners' report, it appears that the property cannot be partitioned in kind and the value of the property does not exceed Five Thousand Dollars ($5,000.00), the court may forthwith dispense with further regular partition proceedings and make an order directing the sheriff of the county to sell the property, in the same manner, as in sales of real estate on execution at not less than two-thirds (2/3) of the appraised value.
B. In addition to the notice required for sales of real estate on execution, notice of the sale shall be mailed with return receipt requested at least twenty (20) days prior to the sale, to all persons owning an interest in the property or to their attorneys at their respective last-known address.
C. If it can be established to the satisfaction of the court, prior to the sale, that such property is of a value in excess of Five Thousand Dollars ($5,000.00), such sale shall not be held and the court shall appoint other commissioners to reappraise the property or refer the matter to the same commissioners.
D. Confirmation of such sale shall be set for hearing not less than ten (10) days after the day of sale. A written notice of hearing on the confirmation of the sale shall be mailed, by first-class mail, postage prepaid, to all persons having an interest in the property as previously determined by the court whose names and addresses are known, at least ten (10) days before the hearing on the confirmation of the sale, and if the name or address of any such person is unknown, such notice shall also be published in a newspaper authorized by law to publish legal notices in each county in which the property is situated. If no newspaper authorized by law to publish legal notices is published in such county, the notice shall be published in some such newspaper of general circulation which is published in an adjoining county. The notice shall state the name of the person or persons being notified by publication and shall be published once at least ten (10) days prior to the date of the hearing on the notice of confirmation of the sale. An affidavit of proof of mailing and of publication, if publication is required, shall be filed in the case.
E. Upon such hearing, if satisfied with the validity and fairness of the sale, the court shall order the sheriff to issue a sheriff's deed to the purchaser of the property and, after apportionment of costs, attorney fees and expenses, direct disbursement of the sale proceeds to those persons legally entitled to receive the same.
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02/21/2009 - Category: Partition - State: OK #15319
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