Clients and their rights to the property.

Sounds like a subdivision. All owners of interest would need to sign off on it.

If the other owners don't agree, He will have to file a Suit to Partition in order to separate his share from the others.

James

> Brother 1 wants me to survey off his acreage. With buildings on the properties, there seems to be other considerations of 'value' that may need to be included in deciding what his 1/3 portion is - NOT something for me to decide.

> Anyone else have a similar situation and just go chop a chunk of property off for their client? If so, were there any complications down the road?

Well, an undivided interest is an interest in the entire property. For him to end up with 100% ownership of some certain part of the property, your client would need to exchange deeds with the other joint tenants, they conveying their interests in that certain part and he conveying his to them in the remainder. They would have to agree to do that and your client would be a fool not to have the title examined and an attorney draft the deeds, assuming the other parties were even agreeable.

If they aren't agreeable to a partition of their interests, then his only options that I know of are to (a) bring a partition suit to force the division of the property if such a division can be done, (b) sell his undivided interest to someone else, or (c) try a little harder to get along with the other joint tenants.

In the case of a partition, chances are your client would be looking at having someone else decide who gets what if the parties can't even agree to that. So he may not end up with what he wants unless he can present some good reasons why a certain part of the tract ought to be set apart to him, such as improvements made by him with his own funds.

In A Partition, They May All Lose The Land

Once a partition suit is started, if the parties cannot agree on how to divide it, then the judge is forced to sell it all, lock stock and barrel and divy up the cash.

One must be very careful about what is asked for.

Paul in PA

In A Partition, They May All Lose The Land

> Once a partition suit is started, if the parties cannot agree on how to divide it, then the judge is forced to sell it all, lock stock and barrel and divy up the cash.

That may be the case in Pennsylvania, but it certainly isn't in Texas and I suspect other places. If the parties could agree how to divide the land, there would be no need for partition suits. No, as long as the land can be divided without any great loss in value of the whole, a court will set about doing it. Typically, the court appoints a commissioner or commissioners to make the division per general instructions given and report back. If the parties can't choose who gets what, lots will be drawn or some third party will make the selection.

I remember Larry P talking about something like this, you might try searching the other board for old posts, if you can.....;-)

Kent

> > Once a partition suit is started, if the parties cannot agree on how to divide it, then the judge is forced to sell it all, lock stock and barrel and divy up the cash.
>
> That may be the case in Pennsylvania, but it certainly isn't in Texas and I suspect other places. If the parties could agree how to divide the land, there would be no need for partition suits. No, as long as the land can be divided without any great loss in value of the whole, a court will set about doing it. Typically, the court appoints a commissioner or commissioners to make the division per general instructions given and report back. If the parties can't choose who gets what, lots will be drawn or some third party will make the selection.

That may be the case in Travis County and the other areas you practice, but up here in the Wilds of East Texas (West Louisiana) once the commissioners are appointed, a value is place and an equitable division is made based on the value (barns and other buildings are considered). If none exist, then the division is made. 90% of them are strips of land. The worst I saw were 30 acre tracts 300' wide and 4000' long. At one point, people were trying to fix it and once the process was started, it had to run it's course.

I hate court-ordered partitions. We don't do them because the judges won't get ALL the money up front and in escrow, and it's damn difficult to get totally paid for land that is, after the division, essentially worthless.

Sounds like you're only working for 1/3 of your client (the owner). The ownership of the property, as I understand from you post, is held by three persons, each with an undivided 1/3 interest in the whole property. Any partition of the property will require all three persons to agree on the division. You can't take instructions from one of the partners. Your instructions have to come from all of them based on their agreement.

JBS

Clients and their rights to the property.>Hijack?

John, Although the ability to convey a piece of property, or divide the interest, requires all three parties consent a partial owner (at least here) may cause a subdivision plan to be prepared and submitted for endorsement (or approval)to the planning board. That plan may then be recorded.

I just completed a comprehensive case where my client had only a 1/3 interest in 100 acres of land. One person claimed ownership of a portion of the property (not one of the 1/3 interests) and filed a subdivision plan based on adverse possession. On the other side of the property another person filed subdivision plan based on 2/3 interest. Both of these plans were approved by the planning board, in spite of my client standing up at the hearing and voicing his disapproval of each plan.

He appealed both decisions and hired me to do a boundary survey of the property.

The case was in the land court for a 9 day trial spread out over 9 months. Never was his partial interest an issue in any of the actions that he took.

So, here in MA, you can divide the property but not have clear title to convey...

Jon, you gave good advice. Undivided interest in property is undivided interest in all of it. Work for all, by agreement of all interest holders or none until the lands are truly divided, then you are free to work for one but a survey would probably be part of the division anyway, hopefully done by you. These things can get rough you can get appraisers, a whole bunch of opposing lawyers and lord only knows what else until the dust is settled.
jud

Kent

> That may be the case in Travis County and the other areas you practice, but up here in the Wilds of East Texas (West Louisiana) once the commissioners are appointed, a value is place and an equitable division is made based on the value (barns and other buildings are considered). If none exist, then the division is made. 90% of them are strips of land. The worst I saw were 30 acre tracts 300' wide and 4000' long. At one point, people were trying to fix it and once the process was started, it had to run it's course.

Okay, you stumped me. In what way is that different than the scheme I laid out, where the court instructs the commissioners as to the basis of the partition? For example, the court will determined who the joint tenant are and what their respective interests are. Then the court will tell the commissioners how to proceed.

Now, in East Texas where, as you suggest, the land is without any special or redeeming features, it probably doesn't matter how the land is divided. If Jim Bob's meth lab is on some other tract that the one that gets set apart to him, he can always move it.

In Central Texas, though, you have situations where some joint owner has made improvements out of his own funds and it would be inequitable to simply award them to one of the other owners without compensation. Naturally, I don't dispute your suggestion that improvements in East Texas are usually so minimal as not to be worth anyone's time thinking about.

Kent

My point is, while the court ordered partitions around here may LOOK equitable, most of the time the only thing they are suitable for after the division is 1000 yard shooting lanes. Long skinny strips are not very utilitarian after you try and use it. Thats my beef with them.

Thanks for all the replies gentlemen.

I think I'll be better off letting the parties involved get things ironed out as to how they intend to handle the split before proceeding. I believe that brother 1 did not realize that he couldn't just sell off 1/3 of the deeded acreage without the others being involved.

Clients and their rights to the property.>Hijack?

> John, Although the ability to convey a piece of property, or divide the interest, requires all three parties consent a partial owner (at least here) may cause a subdivision plan to be prepared and submitted for endorsement (or approval)to the planning board. That plan may then be recorded.

That does sound like a local problem, Don. It would appear that the issue lies with the local planning board. There should be a method for them to confirm that the persons signing the plat (and the application for that matter) really owns the property. Most would simply require a current preliminary title report (a commitment to insure). Even a simple check on the tax roles should be sufficient in most instances. There should have been no way to get a plan approved or much less recorded without the signature and consent of the "owners."

> I just completed a comprehensive case where my client had only a 1/3 interest in 100 acres of land. One person claimed ownership of a portion of the property (not one of the 1/3 interests) and filed a subdivision plan based on adverse possession. On the other side of the property another person filed subdivision plan based on 2/3 interest. Both of these plans were approved by the planning board, in spite of my client standing up at the hearing and voicing his disapproval of each plan.

I can see where filing a subdivision plan based on adverse possession may not be a problem from a title conveyance standpoint; however, unless there had been some record (say an affidavit of AP) or some color of title that likely resulted in a tax assessment, I don't see how they could confirm the owner's consent. Again, it sounds like there is a serious issue with the planning board, not the law.

> He appealed both decisions and hired me to do a boundary survey of the property.
>
> The case was in the land court for a 9 day trial spread out over 9 months. Never was his partial interest an issue in any of the actions that he took.

I'd sure be interested in what he did claim as an issue, if it wasn't some form of conversion or slander of title. If he never raised the issue at trial, then it wasn't an issue for consideration. Some cases are like that. The attorneys just don't raise the proper arguments.
>
> So, here in MA, you can divide the property but not have clear title to convey...

I'd sure like to see a quotation from the law on that point. Just because a planning board does it, doesn't make it legal.

I've heard stranger things happen.

Clients and their rights to the property.>JBStahl

There should have been no way to get a plan approved or much less recorded without the signature and consent of the "owners."

There was on case in the mid 80's where a couple were in the process of getting a divorce. In order to establish a value on the property the husband had a division plan drawn and submitted to the planning board for endorsement. Half the board refused because the wife was against the division. The husband appealed the decision of the planning board, was successful and the board was compelled to endorse the plan. Owners certificates are not required on our subdivision plans. I'll try to find the case but it's such a common occurrence around here that it's just understood; "Planning Boards do not have the right or ability to determine ownership."

It is required that a Municipal Lien Certificate be furnished with the application to the planning board, but that just shows that the taxes are current.

I'd sure like to see a quotation from the law on that point. Just because a planning board does it, doesn't make it legal.

I'll see what I can find 🙂

I had a client who was a brother of a good repeat client. He hired me to do what we call a Tentative Parcel Map to divide the property that he and his soon-to-be-ex-wife owned. The County, at that time, only required the signature of one owner to begin the land division process. The s-t-b-e-w raised heck with the County that she didn't want the property divided so the County changed the rules so that all owners have to sign the application. I don't think they even enforced the new rule after that, they just didn't want to process that land division with her in protest.

The thing is, though, that the client could have gotten approval by the planning board but without signatures by all owners and lenders, the final plat could never have been recorded, so he could have wasted a lot of money on getting something approved that would not have been finalized.