HB4011 - Relating to the partition or voluntary sale of real property owned by certain cotenants; amending the Uniform Partition of Heirs' Property Act.

      By: Darby H.B. No. 4011       A BILL TO BE ENTITLED   AN ACT   relating to the partition or voluntary sale of real property owned   by certain cotenants; amending the Uniform Partition of Heirs'   Property Act.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:   SECTION 1.  relating to the partition or voluntary sale of real   property owned by certain cotenants; amending the Uniform Partition   of Heirs' Property Act.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Chapter 23, Property Code, is amended by adding   Sections 23.0014, 23,0015, 23.0016, 23.0017, 23.0018, 23.0019 and   23.0025 to read as follows:           Sec.   23.0014.     DEFINITIONS. In this chapter, "heir   cotenant," "heirs' property," "non-heir cotenant" and "relative"   have the meanings assigned by Section 23A.002.           Sec.   23.0015.     REQUIREMENTS OF PETITION. (a) A petition to   partition property must:                 (1)     meet the requirements in the Texas Rules of Civil   Procedure;                 (2)     include a statement certifying whether the   property is heirs' property;                 (3)     include the date that the plaintiff acquired their   interest in the property; and                 (4)     include the plaintiff's percentage interest in the   property.           (b)     If a non-heir cotenant brings a partition action for   heirs' property after December 31, 2025, and the non-heir cotenant   acquired their interest in said property after December 31, 2025,   the petition must also include:                 (1)     a statement certifying whether the right of first   refusal and notice of sale requirements in Section 5.254 have been   met;                 (2)     the steps taken to exercise the due diligence   required under Section 5.254; and                 (3)     the full name of the persons who received the   notice required under Section 5.254.           Sec.   23.0016.     CITATION; NOTICE OF HEIR'S BILL OF RIGHTS;   FORM. (a) Citation of an action to partition real property must be   served by personal service or certified mail with return receipt   requested on each of the following persons:                 (1)     each joint owner of the property who is 16 years of   age or older;                 (2)     the parent, managing conservator, or guardian of   each joint owner who is younger than 16 years of age;                 (3)     each person who has paid any part of the property   taxes on the property in any of the five years prior to the filing of   the suit; and                 (4)  each person residing on the property.           (b)     The plaintiff or plaintiff's attorney or agent must   exercise due diligence to identify the name and residence of each   person listed in Subsection (a) and notify the clerk of the court of   the identified names and residences;           (c)     The citation is not required to be served on a person   listed in Subsection (a) if:                 (1)     the person entered a court appearance in the   action;                 (2)     the person is 16 years of age or older and waived   citation; or                 (3)     the person is younger than 16 years of age and the   party's parent, managing conservator, guardian, attorney ad litem,   or guardian ad litem waived citation.           (d)     If the name or residence of a person listed in   Subsection (a) cannot be ascertained through the exercise of due   diligence, the service of the citation shall be made by publication   in accordance with the Texas Rules of Civil Procedures.           (e)     The citation must include a notice of heir's property   rights utilizing the standardized form created by the Office of   Court Administration under Section 72.040, Government Code.           Sec.   23.0017.     AFFIDAVIT. (a) A plaintiff who files an   action to partition real property shall file with the court, no   later than 20 days after the service of citation in the action is   completed:                 (1)     a copy of any citation required by this chapter and   the proof of delivery of service of the citation; and                 (2)     an affidavit sworn to by the plaintiff or a   certificate signed by the plaintiff's attorney stating:                       (A)     that the citation was served as required by   this chapter;                       (B)     the name and address of each person to whom   the citation was served, if the person's name and address are not   shown on the proof of delivery; and                       (C)  if service of citation is waived.           (b)     If the name or location of a person required to be served   the citation under Section 23.0016 has not been ascertained:                 (1)     the affidavit must confirm that due diligence was   taken to ascertain the person's name and residence and contain a   statement of the actions taken to identify the name and residence of   the person; and                 (2)     the court shall inquire into the sufficiency of   the diligence taken to identify the person's name and residence and   require any corrective actions needed to comply with this section.           Sec.   23.0018.     ATTORNEY AD LITEM. (a) The court shall   appoint an attorney ad litem in a partition action to represent the   interests of any joint owners whose name or location is unknown;           (b)     The court shall appoint an attorney ad litem in a   partition action brought by a non-heir cotenant involving heirs'   property to determine if there are any heir cotenants of the   property who have not been identified and to locate any known heir   cotenants who have not been served with the citation. Pursuant to   this subsection:                 (1)     the attorney ad litem shall conduct a due   diligence investigation to locate known heir cotenants and identify   and locate potential unknown heir cotenants, including, but not   limited to, reviewing deed records, contacting known family   members, and utilizing other reasonable means;                 (2)     the court shall dismiss the attorney ad litem upon   a finding that the attorney ad litem completed a due diligence   search for the name and location of all heir cotenants; and                 (3)     The fees for the attorney ad litem appointed under   this subsection shall be paid for by the non-heir cotenant.           Sec.   23.0019.     NOTICE OF ACTION BY POSTING; TIME FOR FIRST   HEARING. (a) Not later than 10 days after bringing an action to   partition property, the plaintiff shall post, and maintain while   the action is pending, a conspicuous sign on the property that is   the subject of the action.           (b)  The sign must:                 (1)     be posted in a conspicuous place on the property   that is reasonably accessible and that the public is most likely to   observe and, if the property abuts a public thoroughfare, in a   location that is easily visible from the thoroughfare;                 (2)     be made of a weatherproof material that is not   likely to disintegrate or decompose;                 (3)  have dimensions of at least four feet by four feet;                 (4)     state in conspicuous language that the partition   action has commenced and identify the name and address of the court   and the common designation by which the property is known.           (b)     The court may require the plaintiff to publish on the   sign the name of the plaintiff and the known defendants.           (c)     The plaintiff must file with the court proof of posting   the sign in compliance with this section not later than the 10th day   after the date of posting.           (d)     The court may not hold the first hearing in the action   earlier than the 60th day after the date on which the plaintiff   provides proof the sign is posted as required by this section.           Sec.   23.0025.     DETERMINATION OF HEIRS' PROPERTY;   APPLICABILITY; RELATION TO OTHER LAW. In an action to partition   real property, after service of the citation is completed in   compliance with this chapter, the court shall hold a preliminary   hearing to determine whether the property is heirs' property under   Chapter 23A. If the court determines that the property is heirs'   property, the provisions of Chapter 23A apply unless all the   cotenants otherwise agree in a written record.          SECTION 2.  Section 23A.002, Property Code, is amended by   adding Subdivisions (4-a) and (5-a) and amending Subdivision (5) to   read as follows:                 (4-a)  "Heir cotenant" means an individual who:                       (A)     acquired a tenancy in common interest in real   property from a relative by will, intestacy, or transfer on death   deed; or                       (B)     acquired a tenancy in common interest in real   property from a relative who previously acquired the interest from   a relative by will, intestacy, or transfer on death deed.                (5)  "Heirs' property" means real property held in   tenancy in common that satisfies all of the following requirements   as of the filing of a partition action:                      (A)  there is no agreement in a record binding all   the cotenants that governs the partition of the property;                      (B)  one or more of the cotenants acquired title   from a relative, whether living or deceased; and                      (C)  any of the following applies:                            (i)  20 percent or more of the interests are   held by cotenants who are relatives;                            (ii)  20 percent or more of the interests are   held by an individual who acquired title from a relative, whether   living or deceased; [ or ]                            (iii)  20 percent or more of the cotenants &# [Text truncated for display. 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