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Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 99492
Experience:  Fully licensed attorney in Texas in private practice.
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how can I defend against a forced partition action to sell

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how can I defend against a forced partition action to sell my family homestead that my sister wants to sell after our mother's death leaving us co-owners?
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation.

A Petition to Partition is an action that a party may request of the Court if dual owners cannot agree as to what to do with the property. See here.

The best way (and frankly, almost the only way) to get the Court to refuse a partition it to show that it would mean extraordinary hardship or oppression for one of the parties. Statute 60-1003(d).

Ergo, someone in your situation may wish to reply (and to argue in Court if she presses the matter) that a partition would cause extraordinary hardship or oppression. Examples of extraordinary hardship or oppression can be:

-having nowhere else to go and/or no money to pay for rent;
-having already put money into an investment and/or a trust for the property and/or having planned future involving the property which has already been set in motion; and/or
-any other reasonable hardship.

Do not let the attorney fool you - the Judge is not going to partition the property automatically without first giving consideration to any extraordinary hardship or oppression. If any can be proven, the partition would likely be denied.

I hope this helps and clarifies. Good luck.

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