Partition Action Drafting for Co-Owned and Inherited Real Property
A partition action is the lawsuit a co-owner files to make a court end shared ownership of property, either by dividing it into separate parcels (partition in kind) or by ordering it sold and splitting the proceeds by each owner's share (partition by sale). Any co-tenant can generally bring one, including an heir who inherited a fraction of a family house, unless the owners signed an agreement that waives or limits partition.
We draft the papers that move the case: the complaint or petition, the lis pendens notice, the motion for an interlocutory judgment, referee or commissioner proposals, the accounting claims for mortgage, tax, and improvement payments, and the buyout agreement that often settles it. Drafts return to you, whether you represent yourself or work with counsel, to review, sign, and file.
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CCP 872.010 · Tex. Prop. 23 · Fla. Stat. 64
Divide it, sell it, or buy a co-owner out
Partition Lawsuit Papers We Draft, From the Complaint to the Buyout Agreement
A partition lawsuit is rarely one document. The plaintiff pleads the shares and the remedy, records notice against the title, asks the court to fix each owner's interest, then works through a referee or commissioners while the owners fight over who paid what. We draft every stage, for the co-owner who files and for the co-owner who was served. Engage one document or the full sequence.
New to civil pleadings? Our explainer on how a civil complaint starts a lawsuit covers the parts every partition complaint shares with other civil cases.
Partition Complaint or Petition
The opening pleading, built to the governing statute: the legal description and street address of the property, every known interest of record, each co-owner's share, the estate to be partitioned, and, where sale is sought, the facts that justify it (California CCP Section 872.230; Texas Rule 756 adds the property's estimated value; Florida Section 64.041).
Lis Pendens Notice
Notice of the pending action for recording with the county recorder or county clerk where the land sits. California requires recording immediately on filing (CCP Section 872.250); Texas and Florida use their general lis pendens statutes (Property Code Section 12.007; Florida Section 48.23).
Motion for Interlocutory Judgment
The motion and proposed judgment that fix each party's interest and order the partition and its manner (CCP Section 872.720), or in Texas the first decree that determines shares and appoints commissioners (Rules 760 and 761).
Referee and Commissioner Proposals
Proposed orders appointing and instructing a referee (CCP Section 873.010) or commissioners (Texas Rule 761; Florida Section 64.061), with proposed terms on listing, broker selection, minimum price, and sale method.
Accounting and Offset Claims
The pleading and schedule of credits and charges between co-owners: mortgage principal, property taxes, insurance, repairs, improvements, rents collected, and rental value where an owner was excluded. California CCP Section 872.140 lets the court order allowance, accounting, contribution, or other compensatory adjustment according to equity.
Buyout and Settlement Agreement
The agreement that ends the case without a sale: price, credits and charges, payoff of the loan, deed-out mechanics, possession date, and dismissal terms. Drafted so the settling owners can present it to the court or close outside it.
Heirs Property Filings
Pleadings and notices under the heirs property statutes: the heirs property allegations, the buyout election notice, objections to the court's appraisal, and the partition-in-kind factors (Texas Chapter 23A; Florida Sections 64.201 to 64.214; California CCP Section 874.311 et seq.).
Answer, Cross-Complaint, and Objections
For the co-owner who was served: the answer contesting shares or the manner of partition, a cross-claim for accounting, and objections to the referee's or commissioners' report (Texas Rule 771 allows objections within thirty days of the report's filing).
Partition in Kind vs. Partition by Sale: What Your Pleading Should Ask For
The law starts from division. California's Code of Civil Procedure Section 872.810 directs the court to divide the property among the parties according to their interests, and Section 872.820 allows a sale instead only when the parties agree to one or the court finds that sale and division of the proceeds would be more equitable than dividing the land. Texas Rule 761 has the court decide first whether the property is susceptible of partition, and Rule 770 orders a sale of whatever part cannot be fairly and equitably divided. Florida Section 64.071 allows a sale when the commissioners report that the land cannot be divided without prejudice to the owners.
In practice, a single-family house almost never divides into equal parcels, so most residential cases end in a sale or a buyout. Raw land, farmland, and multi-parcel holdings are different: a plaintiff who wants a sale of acreage has to plead and prove why division would hurt the owners, and a defendant who wants to keep a piece of the family land can push for division instead. That choice is made in the complaint. California Section 872.230(e) requires the complaint to allege the facts that justify a sale when one is sought, and we draft those allegations from the property's actual layout, zoning, access, and value.
Texas adds one detail worth knowing: when land is divided, Property Code Section 23.006 has the commissioners grant an access easement to any resulting tract that has no road access, unless the parties waive it. When the property is sold through the court, the proceeds are split by the shares fixed in the judgment after costs and the accounting adjustments described below.
How to Force the Sale of Inherited Property Held With Siblings or Other Heirs
The most common partition we draft starts with a death. A parent leaves the house to three children, one lives in it, one wants to sell, and one cannot be reached. Once title has passed to the heirs, each holds an undivided fractional share, and any one of them can ask a court to partition. If title is still sitting in the estate, it may first need to pass through probate or an heirship filing; in Texas, an affidavit of heirship form is one common way heirs document who inherited.
Many states now protect family-held land from quick forced sales through the Uniform Partition of Heirs Property Act. Texas adopted it as Property Code Chapter 23A, effective September 1, 2017, and Florida as Sections 64.201 to 64.214, for actions filed on or after July 1, 2020. In both states it applies only to "heirs property": tenancy-in-common real property with no binding partition agreement, where at least one co-owner took title from a relative and relatives hold at least 20 percent of the interests (or make up 20 percent of the owners). California went further. Its Partition of Real Property Act, CCP Section 874.311 and following, applies to all tenancy-in-common real property in actions filed on or after January 1, 2023, unless the owners agreed otherwise in a record.
Under these acts the court orders an appraisal, the parties can object, and then any co-owner who did not ask for a sale gets 45 days after notice to elect to buy out the owners who did, at the appraised value multiplied by each seller's fraction (Texas Section 23A.007; Florida Section 64.207; California Section 874.317). If no buyout closes, the court (in Florida, the commissioners) must weigh factors such as family ownership history, sentimental attachment, and who paid the taxes before ordering a sale, and a sale then defaults to an open-market listing by a broker rather than a courthouse auction.
For an heir who wants out, that means the complaint must plead the heirs property facts honestly and plan for the buyout window. For an heir who wants to keep the house, it means the buyout election and the partition-in-kind factors are the defense. We draft for either side. Other states have adopted their own versions of the act, so we confirm your state's statute at intake before drafting.
California, Texas, and Florida Partition Rules Our Drafts Follow
The three states below produce most of the partition matters we see, and they differ on who divides the land, when notice must be recorded, and how fees are shared. We draft to the statute and the local court rules of the county where the property sits, and we confirm the same points for any other state at intake.
| Issue | California | Texas | Florida |
|---|---|---|---|
| Governing law | Code of Civil Procedure Section 872.010 et seq. | Property Code Chapter 23; Tex. R. Civ. P. 756 to 771 | Florida Statutes Chapter 64 (Sections 64.011 to 64.091) |
| Who may file | A co-owner of personal property, or an owner of an estate of inheritance, for life, or for years in real property held concurrently or in successive estates (Section 872.210(a)) | A joint owner or claimant of real property or an interest in it (Section 23.001) | Any one or more joint tenants, tenants in common, or coparceners (Section 64.031) |
| Where filed | Superior court of the county where the real property, or some part of it, is situated (Section 872.110) | District court of a county where any part of the property is located (Section 23.002) | Any county where the lands or any part of them lie (Section 64.022) |
| What the pleading must state | Legal description and street address, all interests of record or known, the estate to be partitioned, and facts justifying a sale if one is sought (Section 872.230) | Names and residences of the other owners, each share, and a description of the land with its estimated value (Rule 756) | Description of the lands, the names and residences of the owners, the quantity each holds, and anything else needed to adjudicate the rights (Section 64.041) |
| Lis pendens | Must be recorded immediately upon filing; the court stays the action until it is (Section 872.250) | A party seeking affirmative relief may record notice with the county clerk (Section 12.007) | The action binds third parties only if a notice is recorded; it can expire after one year unless the court extends it (Section 48.23) |
| Who divides or sells | A court-appointed referee (Section 873.010) | Three or more disinterested commissioners (Rule 761); sale where the property cannot be fairly divided (Rule 770) | Three commissioners (Section 64.061); public-auction sale where partition would prejudice the owners (Section 64.071) |
| Default remedy | Division in kind (Section 872.810) unless the parties agree to a sale or a sale is more equitable (Section 872.820) | Division where the property is susceptible of partition (Rule 761); sale of any part that is not (Rule 770) | Division by commissioners, or sale where the property is indivisible (Sections 64.061, 64.071) |
| Heirs property protections | Partition of Real Property Act, Section 874.311 et seq.: applies to all tenancy-in-common real property in actions filed on or after January 1, 2023, absent a binding agreement in a record | Uniform Partition of Heirs' Property Act, Chapter 23A (effective September 1, 2017), for property that meets the heirs property definition | Uniform Partition of Heirs Property Act, Sections 64.201 to 64.214, for actions filed on or after July 1, 2020 |
| Costs and fees | Costs include reasonable attorney's fees for the common benefit (Section 874.010), apportioned by interest or equity (Section 874.040) | Commissioners' and surveyor's fees taxed as court costs (Section 23.005) | Each party pays a share of costs, including attorneys' fees of benefit to the partition, in proportion to its interest (Section 64.081) |
When partition is the wrong tool
Spouses dividing community property do so in the divorce, not in a partition case; California CCP Section 872.210(b) bars that claim under the partition title. A written co-ownership or tenancy-in-common agreement can waive or limit partition, and a house held in a living trust is usually a trust administration question first. We screen for each of these before drafting and tell you if the matter belongs in a different proceeding.
Unusual title history, an old probate, or a question the table does not answer? Our legal research team can run the statute and case law for your state as part of the same engagement.
Buyout Offers, Offsets, and Accounting Claims Between Co-Owners
Ownership shares on the deed are only the starting point. The co-owner who paid the mortgage for six years, or paid the property taxes, insurance, and a new roof, usually asks for credit before the proceeds are split. California states the power directly: CCP Section 872.140 lets the court order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity. Florida's heirs property part requires the court to determine an equitable accounting on any co-owner's request and adjust the buyout or sale price to match (Section 64.206).
Charges run the other way. A co-owner who collected rent from tenants and kept it, or who shut the others out of the property (an ouster), may owe the others their share of the rents or of the fair rental value. When a co-owner simply lives in the property without excluding anyone, many states do not charge rent at all. That rule, and how improvements are valued, is set by each state's case law, so we research it for your state and build the accounting claim around the documents you actually hold: loan statements, tax receipts, invoices, leases, and messages showing who was excluded.
Most partition cases settle once the accounting is on paper, because the numbers show each owner what a sale would really net. We draft the buyout offer letter and the settlement agreement, and when one owner takes title, the departing owner typically signs a deed out; our quitclaim deed form and recording guide covers that last step. When a gap in the chain of title has to be cleared first, see our quiet title action drafting, and when the property sits in a trust whose trustee will not sell or distribute, a petition to remove the trustee is usually the better tool.
How We Draft Your Partition Petition, and Who Signs and Files It
Every engagement follows the same six steps, whether you are filing the first petition for partition or answering one. The last step is always yours: we prepare the draft, and you, or the attorney you work with, sign, file, record, and serve it.
- 1
Matter intake
Send the deed or vesting document, the county and state, who the co-owners are, each claimed share, whether anyone lives in the property, and what outcome you want: division, sale, or a buyout. Scope, drafter, and delivery date come back in one business day.
- 2
Title and statute screen
We read the vesting language, check for a co-ownership agreement that waives or limits partition, test whether the property meets the heirs property definition in your state, and flag community property held by spouses, which California excludes from a partition action (CCP Section 872.210(b)).
- 3
Engagement NDA and portal
Matter-specific NDA, then a secure portal for the deed, title report, mortgage statements, tax bills, receipts, and correspondence between the owners. No email attachments.
- 4
Drafting and accounting schedule
The complaint or petition, the lis pendens notice, and the accounting schedule are drafted together, so the shares pleaded, the credits claimed, and the relief prayed for match line by line.
- 5
Cite-check and second read
A second drafter checks every statute, rule, and local requirement against the official source for your state and county before the draft leaves the portal.
- 6
Returned for you to sign and file
You, or your counsel, review the draft, make the final calls, sign it, file it with the court clerk, record the lis pendens, and serve the other co-owners. Later stages (motions, referee proposals, buyout agreement) run the same way.
Legal Tank
- Screens title, co-ownership agreements, and heirs property status.
- Drafts the complaint or petition and the lis pendens notice.
- Builds the accounting schedule of credits and charges.
- Drafts motions, referee or commissioner proposals, and objections.
- Drafts the buyout offer and settlement agreement.
You, or Your Counsel
- Decide the remedy to seek and whether to settle.
- Review and sign every pleading and agreement.
- File with the court, record the lis pendens, and pay the fees.
- Serve the co-owners and attend every hearing.
Questions Co-Owners Ask Before Filing a Partition Action
What is a partition action?
Can one heir force the sale of inherited property?
How long does a partition action take?
Who pays the costs and attorney fees in a partition action?
Can I file a partition action without a lawyer?
Send Us the Deed, the Co-Owners, and What You Want to Happen
Tell us the county and state, who holds title, whether the property was inherited, and whether you want it divided, sold, or bought out. We return scope and a delivery date in one business day, and every draft comes back for you to sign and file.
Quotes return same business day on intakes received before 5 PM ET