Detailed answer — What happens if mediation fails and you must file a partition action in Michigan?
This answer explains, in plain language, what typically happens when mediation over jointly owned real estate fails and one co‑owner files a partition action in Michigan. This is educational information only and not legal advice. Consult a licensed Michigan attorney before filing.
What is a partition action?
A partition action is a court proceeding that asks a judge to divide or sell real property owned by two or more people when the owners cannot agree on its use or disposition. In Michigan, partition claims are governed by the partition statutes (see MCL 600.2801 et seq.). A court can either divide the land among owners (partition in kind) or order the land sold and divide the proceeds (partition by sale).
Statute reference: see the Michigan Compiled Laws on partition: MCL 600.2801 et seq..
Where do you file the case?
Most partition actions are filed in the Michigan circuit court for the county where the property is located. The complaint names all co‑owners and any known lienholders or parties with recorded interests so the court can resolve all claims affecting the property.
Typical steps in a Michigan partition action
- File complaint and serve parties. The plaintiff files a complaint for partition and serves the complaint on every co‑owner and any recorded lienholders or interested parties.
- Court determines interests. The court or the parties present deeds, title records, and other evidence. The judge determines each party’s ownership interest (percentage share) and whether recorded liens exist that must be paid out of proceeds.
- Consideration of partition in kind. Courts generally favor dividing property in kind when practicable. The court will assess whether the land can be physically and fairly divided to give each owner a separate tract consistent with their ownership shares.
- If in‑kind partition is impractical → sale. If the court finds division would be wasteful or impossible (for example, a single-family house on one lot where division would destroy value), it will order a sale of the entire property and direct how proceeds are distributed.
- Appointment of a commissioner or referee. Courts commonly appoint a commissioner (sometimes called a special magistrate) to manage the physical division, prepare descriptions, sell the property at auction or oversee a private sale, and report back to the court.
- Sale process and distribution. If the court orders a sale, the property is usually sold at public auction or by court‑approved private sale. Sale costs, unpaid mortgages, tax liens, and court/commissioner fees are paid first. The remaining proceeds are distributed among owners according to the ownership shares determined by the court.
- Final decree. After the sale or division, the court enters a decree that conveys title to the divided parcels or approves the sale and orders distribution. That decree finalizes the action and allows the clerk to record whatever transfer is necessary.
Practical consequences and risks
- Loss of control: Once you ask the court to partition, you give the court the power to divide or sell—sometimes at a price lower than an agreed private sale.
- Costs and delays: Litigation, commissioner fees, appraisals, and sale expenses reduce proceeds and often make partition actions expensive and slow (months or more depending on disputes and court schedules).
- Priority of liens: Mortgages, tax liens, and other recorded claims are typically paid from sale proceeds before owners receive distribution. That can reduce or eliminate what some owners receive.
- Possible buyout: The court may allow or the parties may negotiate for one co‑owner to buy out others at an appraised value before a sale; this can preserve value and reduce costs.
When a sale is ordered — what to expect
The court will set procedures for the sale. A commissioner might list the property for public auction or arrange a private sale subject to the court’s approval. After the sale, the court will account for expenses and liens and distribute net proceeds according to ownership percentages.
Timeframe and expenses
There is no fixed timetable. Simple uncontested partitions can complete in a few months; contested cases can take much longer. Expect filing fees, attorney fees if you hire counsel, appraisal fees, commissioner fees, advertising costs for the sale, and other administrative expenses. Those costs come out of the sale proceeds or are charged to the parties as the court orders.
Alternatives to filing
Because partition risks cost and a forced sale, consider alternatives before filing: negotiate a voluntary sale and split proceeds; arrange a buyout (one co‑owner buys the others); enter binding mediation or arbitration with clearer terms; or agree to a long‑term co‑ownership agreement addressing use, expenses, and eventual sale.
Next practical steps if mediation fails
- Collect title documents, deeds, mortgage statements, tax bills, survey(s), and any written agreement between owners.
- Get a current market appraisal or broker opinion of value so you know what to expect.
- Talk to a Michigan real property attorney to review options and the likely legal costs and timelines in the county where the land sits.
- Ask the attorney about temporary court orders (injunctions or possession orders) if the property is at risk of damage or if one party is excluding others.
Disclaimer: This information is educational only and does not constitute legal advice. I am not a lawyer. For advice about your specific situation, consult a licensed Michigan attorney.
Helpful Hints
- Before filing, try one last written settlement offer that includes a buyout price and a deadline. Courts often view good‑faith settlement efforts positively.
- Gather and organize documents: deeds, closing statements, mortgage and tax records, surveys, insurance, and any written agreements about the property.
- Get a neutral appraisal or broker market analysis so you can make realistic offers and evaluate sale outcomes.
- Ask about a commissioner’s role and likely fees in your county. That cost will come out of the sale proceeds.
- Consider timing: if market conditions are poor, a forced sale may yield less than a negotiated sale later.
- Check for liens and mortgages early. These get paid from sale proceeds and affect net recovery.
- Document property use and contributions (who paid taxes, repairs, mortgage) — the court may consider equitable adjustments when dividing proceeds.
- Talk to an attorney experienced in Michigan real property and partition law before filing—an early consultation can save time and money.