All property held in co tenancy is subject to partition, if there is a present right of possession, and regardless of whether the title of the parties is legal or equitable, every co-tenant may demand partition as a matter of right. Thus, as a general rule, the petitioner must have an estate in possession; that is, actual possession or a right to possession, although some statutes have modified the rule with respect to partition actions involving life tenants and remaindermen. Subject to the above rules, all parties need not actually occupy the property or have equal estates therein, and the estate in actual or constructive possession need not be in fee.

Exception: In the absence of statutory provisions, an exception to the general rule as to the right to partition of any property held in common exists in the case of burial lots in which bodies have been interred. On the ground of public policy, it is held that such a lot cannot be made the subject of partition.

NOTE: State statutes may set forth some other cases of exceptions or limitations.

Every person having an interest in the property, whether in possession or otherwise, who is not a plaintiff must be made a defendant in the partition suit.

You must ascertain that all parties in interest have appeared or have been legally served, since a lack of jurisdiction of necessary parties renders the decree void not only as to the parties omitted but also as to the other parties to the suit. It is impossible to partition land either in kind or by sale without having all owners affected by the decree before the court

State law must also be consulted in regard to special situations, e.g., spouses, personal representatives of decedent's estates, etc..

The suit must be filed in the county in which the real estate, or some part of it, is located. The petition must describe the property and the respective interests of the several owners thereof, so far as known, and, so far as interests or the owners thereof are unknown, contingent, or doubtful, the facts must be set forth with reasonable certainty. In some states  an abstract of the record title needs to be attached. When the statute contains provisions as to what the complaint shall contain, they are mandatory.

The resulting conveyances, upon being recorded in the county where the property is located, are valid against all subsequent purchasers, and also against all persons interested at the time who were parties to the action, including, in most states, owners of future interests not yet in being

Partition, voluntary or judicial, is not a means for acquiring title.  It is the manner by which co-owners may seek and acquire the right to exclusive ownership and possession of a part of the jointly owned property that, before partition was owned by all and each owner had an equal right to use and possess.

Remember no new title is created by a partition.  Title is created by the chain of conveyances and that chain was completed when the co-owners got the property.  In common understanding however, each of the former co-owners now individually own their property to the exclusion of the others. (See Grigsby v. Peak 68 Tex. 235; TX S.Ct., 1887.)

You should pay particular attention to partitions in which the surface estate is partitioned but the mineral is not.

After September 1, 2001, all properties involved in a partition suit must have access provided to them.