Houston real estate lawyers, like those at Hayes Hunter PC, sometimes deal with probate disputes over inherited property. Recently, two sisters began arguing over a house gifted equally to both by their deceased parents. One sister came to Hayes Hunter PC and informed attorneys Charles Clinton Hunter and Lucas J. Miller that her sister was failing to honor the terms of a jointly signed listing agreement for sale of the parents’ home.
Hayes Hunter PC’s client needed money from the proceeds of the home’s sale to pay medical bills from her cancer treatments. However, her sister wanted to stay in the parents’ home rent-free for her convenience. The noncooperating sister refused to move forward with the house sale, to allow any potential buyer access to the house, or to allow the listing agent to show or hold open houses for the home.
Hayes Hunter PC filed a partition lawsuit for the client to force a sale of the home. Texas law will not force a reluctant joint owner of real property to maintain joint ownership. Accordingly, the Legislature has created a certain breed of lawsuit called a “partition” action to address disagreements among co-owners. Partition action proceed in two stages.
In the first stage, the trial court determines (1) who owns the property and adjusts ownership interests based on various equitable factors (including who has paid taxes, who has made improvements or lived on the property, and the like); and (2) whether the property can be divided into separate lots for each owner (partition “in kind”), or whether it has to be sold (partition “by sale”). After gathering more information, the trial court proceeds to the second stage, where it orders the division or sale of the property according to the adjustments it made in the first stage.
In general, the law favors partition in kind, rather than a partition by sale. If a party wants the property sold, it has to justify the sale or demonstrate that partition in kind is “impractical or unfair.” If partition in kind does not serve the parties’ interests, and the maximum value of the land is not preserved, the court will order a partition by sale. However, even if partition in kind is possible and will preserve the property’s value, a trial court may nonetheless reasonably conclude partition in kind is “not feasible, fair, practical, or equitable” given the parties’ interests in the property. In that case, the trial court must order partition by sale.
Attorney Miller argued that the parent’s home should be sold instead of divided, in major part because the sisters had already agreed to sell it. While the sisters each owned half the home, the sisters’ mutual interest was to recover sales proceeds. Moreover, failure to honor the terms of the listing agreement would expose both sisters to liability for the real estate agent’s commission even without a sale. Mr. Miller accordingly asked the court to step in and restore the sisters’ agreement to list and sell the property. Barring that, Mr. Miller asked the court to force the sale of the property by partition. After negotiations, the sisters settled the case between them, and the parents’ home was sold in early March of 2024.
Hayes Hunter PC proudly continues to represent its clients in partition cases and in other diverse real estate matters. If you or someone you know is involved in a disagreement over property, feel free to schedule a consultation with one of our attorneys at (346) 363-0334, or fill out a contact form here.
Congratulations to Lucas J. Miller on this victory for his client!
