Detailed Answer
Short overview. If you own an inherited, undivided interest in family land in Arizona and a co-owner will not buy you out or agree to sell, you can ask the superior court to force a partition. Arizona law allows a court to divide the property in kind when feasible or order its sale and divide the proceeds among the owners according to their interests. See A.R.S. § 12-1101 et seq. for the statutory framework: A.R.S. Title 12 (Civil Actions) and the partition statute: A.R.S. § 12-1101.
Who should bring the action and where to file
Any co-owner of real property may file a civil complaint for partition in the superior court in the county where the property lies. The plaintiff must name all known co-owners and all parties with recorded interests (mortgages, judgments, liens) so the court can resolve ownership and distribute proceeds properly.
Key preparatory steps
- Confirm ownership. Gather deeds, the decedent’s will or trust documents, and any probate orders that show how the ownership arose.
- Get a title search. Identify co-owners, liens, mortgages, easements, and encumbrances.
- Try negotiation first. Send a written demand to co-owners proposing a buyout or sale. Courts often expect parties to try settlement before litigating.
- Collect property data. Obtain a legal description, recent tax bills, and a map or survey if one exists.
Filing the partition complaint
The complaint typically includes:
- The legal description of the property.
- The name and share of each owner as you understand it.
- A request for partition in kind (division) or, if division is impractical, for sale and distribution of proceeds.
- A request to appoint a commissioner or special master to carry out valuation, division, or sale.
File the complaint in superior court and pay the filing fee. Serve the summons and complaint on all named parties. If a party cannot be found, the court may allow substituted service or notice by publication under court rules.
What happens after filing
After the court issues service and answers, common next steps include:
- Pretrial scheduling and exchange of appraisals or valuations.
- Appraisal or survey ordered by the court to determine fair market value.
- Hearing on whether partition in kind is practical. Arizona courts favor partition in kind when it can fairly divide the land without material prejudice to the owners. If land cannot be divided reasonably, the court orders sale.
- Appointment of a commissioner/referee to oversee the physical division or sale. The commissioner conducts the sale, pays lien holders and costs, and reports to the court how proceeds should be split.
Sale process and distribution
If the court orders sale, the property usually sells at public auction or by other court-ordered method. The commissioner pays mortgages, tax liens, and court-ordered costs, then distributes remaining proceeds according to each owner’s interest. The court may award costs or attorney fees in limited circumstances; check the statute and case law for specific rules.
Common complications
- Mortgages and liens must be satisfied from sale proceeds. A junior interest may receive nothing if senior liens absorb the proceeds.
- Homestead, trust terms, or probate orders can affect whether a sale may proceed. Confirm whether the property is subject to a recorded trust or homestead claim.
- Co-owners may ask the court to defer sale to allow a buyout or to permit lease or income-producing arrangements until market conditions improve.
Timeline and costs
Timelines vary. Simple partitions can finish in a few months. Complex disputes with multiple parties, title issues, or appeals can take a year or longer. Expect costs for filing fees, service, appraisals, possible surveys, commissioner fees, and attorneys’ fees if you hire counsel.
When to hire an attorney
If title is complex, if liens or mortgages exist, if family tensions are high, or if the other owners retain counsel, you should consult a lawyer experienced in Arizona real property and partition law. A lawyer can prepare pleadings, identify required parties, and help protect your share.
Disclaimer: This article provides general information about Arizona partition procedure and is not legal advice. For advice about your specific situation, consult a licensed Arizona attorney.
Helpful Hints
- Start by locating the recorded deed and probate documents showing how you hold title.
- Get a preliminary title report before spending on litigation.
- Send a clear written demand for buyout or sale before filing court papers; courts and judges often prefer parties to try resolving disputes without litigation.
- If you own a small fraction and the cost of litigation will exceed your share, consider negotiating a cash settlement or selling your interest to another co-owner or third party.
- Prepare for appraisal and survey costs; these are common and often required.
- Document all communications with co-owners in writing; it helps in court and settlement discussions.
- Ask the court about mediation or settlement conferences to avoid a contested trial.
- Check for homestead claims, trusts, or probate orders that could limit a forced sale.