When a co-owner won't sell Texas land, or an heir can't be found

Do all the owners have to agree to sell?

To sell the whole property, yes. When two or more people inherit or buy land together without dividing it, each usually owns an undivided share of the entire tract. Nobody owns the north 20 acres or the pond. So a buyer needs a deed signed by every owner, and the buyer's title company will expect every name on it.

There are two exceptions worth knowing. An independent executor whose will or court order gives the power to sell can sign for an estate without every heir signing, as our guide to selling inherited land in Texas explains. And any owner can sell their own share without asking anyone, though the buyer simply steps into that owner's place as a co-owner.

What nobody can do is force the others to stay co-owners forever. Section 23.001 of the Texas Property Code lets any joint owner compel a partition of the property. A Houston appeals court summed it up in 2018: Texas law won't force a reluctant joint owner to stay in a joint ownership.

Start with a buyout or an agreed sale

A lawsuit should be the last step. Co-owners disagree for different reasons: one wants cash now, one wants to keep the family place, one thinks the price is too low. Each of those can be negotiated.

Get a written appraisal from a licensed appraiser first. It turns the argument from opinions into a number everyone can see, and a court handling inherited land would order one anyway.

What happens in a Texas partition suit

Any co-owner can file a partition suit in the district court of a county where any part of the land sits (Property Code 23.002). The Texas Rules of Civil Procedure set out the steps in Rules 756 to 771:

1. The petition names every co-owner, states their shares as far as known, and describes the land with an estimated value.
2. The court decides each owner's share and any title disputes, then whether the land can be fairly divided.
3. If it can, the court appoints three or more disinterested commissioners. They divide the land into shares as equal in value as they can, in proportion to each owner's interest, and assign them by lot. They can order a survey. An acre on the highway and an acre in the creek bottom aren't worth the same, and the split should reflect that.
4. Anyone can object to the commissioners' report within 30 days of its filing. If the report is materially wrong or unequal, the court rejects it and appoints new commissioners.
5. If the land can't be fairly divided, Rule 770 has the court order it sold, and the money is split by share.

Texas courts favor dividing land over selling it, and the owner who wants a sale has to prove a fair division isn't possible. That was the rule applied in Bowman v. Stephens, a 2018 Houston case over a family lake property. Rural acreage often divides well. A tract with one road frontage, a house in the middle or a floodplain across it may not.

If dividing the land would leave a new tract with no road access, the commissioners must grant it an access easement across a neighboring partitioned tract, unless the owners waive it (Property Code 23.006). Our guide to selling landlocked land explains why access matters so much to value.

Extra protection for inherited family land

In 2017 Texas adopted the Uniform Partition of Heirs' Property Act (Property Code chapter 23A). In any partition suit, the court must first decide whether the land is "heirs' property." It is if, when the suit is filed:

• the owners hold it as tenants in common, with no written agreement binding all of them about partition;
• at least one owner got title from a relative, living or dead; and
• relatives hold at least 20% of the interests, or one person who got title from a relative holds at least 20%, or at least 20% of the owners are relatives.

When the Act applies, it changes the process in four ways:

• The court sets the value. Unless all owners agree on a value, the court appoints a disinterested appraiser. Owners get 30 days to object before a hearing on value.
• The others get the first chance to buy. If someone asked for a sale, the other owners have 45 days after the court's notice to elect to buy that person's share. The price is the court's value multiplied by the fraction that person owns. The court then sets a payment date at least 60 days out.
• Dividing is the default. If no buyout happens, the court orders the land divided unless that would cause substantial prejudice to the owners as a group. It weighs whether the land can practicably be divided, whether the pieces would be worth materially less than the whole, how long the family has owned it, sentimental attachment, current use, and who has paid the taxes and upkeep.
• Any sale is on the open market. A broker lists the land at no less than the court's value, unless the court finds sealed bids or an auction would be better for the owners as a group.

All the owners can agree in writing to use the older rules instead. For a family trying to keep land, the buyout right matters most: a cousin who wants cash can't force a quick courthouse sale if the rest of the family can raise the money.

How long a partition suit takes, and who pays

There's no reliable statewide average. The time depends on the county's docket, how many owners there are, whether anyone contests the shares or the title, and whether missing owners have to be served by publication. The Heirs' Property Act's built-in periods alone (30 days to object to the appraisal, 45 days to elect a buyout, at least 60 more to pay) add months before the court even decides between dividing and selling.

The rules on costs are clearer:

• Commissioners and any surveyor are paid a reasonable fee set by the judge and charged as court costs (Property Code 23.005).
• Court costs are split among the owners in proportion to the value of the share each receives (Rule 778).
• A lawyer appointed for unknown owners is paid out of their share (Rule 759).
• Your own lawyer's fees are a separate question. Ask at the start how they'll be handled.

Add a court-ordered appraisal, a survey and a broker's commission if the land is sold, and a contested partition can eat into everyone's share. That's the best argument for a negotiated deal.

What if an heir can't be found?

Land that has passed through two or three generations often has an owner nobody has heard from in years. That share doesn't disappear, and the rest of the family can't sign it away. You have three tools.

• Search properly first. Check obituaries, probate and deed records in counties where relatives lived, and social media, and keep notes of where you looked. Courts ask about your diligence.
• In a partition suit, you swear that an owner is unknown or can't be located after due diligence, and the court allows citation by publication. The judge must check that your search really was diligent before granting any judgment (Rule 758). If the missing owner doesn't appear, the court appoints an attorney to defend their interest, and that fee is charged against their share (Rule 759). When the Heirs' Property Act may apply, you also have to post a sign on the land about the suit (23A.004).
• In an heirship case, where a court declares who inherited, the court must appoint an attorney ad litem to represent heirs whose names or locations are unknown (Estates Code 202.009).

The missing owner keeps their value. If heirs' property is divided, the shares of unknown or unlocatable owners stay together as one undivided piece (23A.008). The other owners can also ask the court to let them buy the share of an owner who was served but never appeared, at the court's value (23A.007).

Selling only your share

If you'd rather step away, you can deed your undivided interest to anyone without the others' permission. The buyer becomes a co-owner with the same rights you had, including the right to ask for partition. Your co-owners are often the most motivated buyers, so offer it to them first.

Expect less than your fraction of the whole tract's value. A buyer of a share gets no control over the land, a group of co-owners they didn't choose, and possibly a lawsuit ahead.

If the co-owner is an ex-spouse

Read the divorce decree first. If it divided the land or ordered it sold, the court that granted the divorce can issue further orders to enforce or clarify that division (Family Code 9.006). If the decree didn't deal with the land at all, either former spouse can file a suit to divide it (Family Code 9.201). If the decree left you both on title as co-owners, the partition rules above generally apply.

Getting help

A partition suit, an heirship case or a buyout involving a missing owner all call for a Texas real estate attorney. Each owner's tax on a sale depends on their own basis, which our guide to capital gains tax on land in Texas explains.

Once the family agrees to sell, you have the same options as any landowner: an agent, selling it yourselves, or a land company like ours. If you'd like to talk it through, tell us about the land and who owns it. We'll research the records, and if everyone agrees on a price, a Texas title company closes the sale and pays each owner their share.