Detailed Answer
When some co-owners of real property want to sell but others refuse, Montana law provides a court remedy called a partition action. A partition action asks a Montana district court to divide the property among the co-owners (partition in kind) or, if physical division is impractical, to order a sale of the property and distribute the proceeds among the owners. Any co-owner (for example, a family member who owns an undivided share) can file this lawsuit in the county where the property is located.
How the court decides between dividing the land and ordering a sale
The court evaluates whether the property can be fairly divided without significantly harming its value or usefulness. If the land can be divided without material prejudice to the owners’ interests, the court may order partition in kind. If a fair in-kind division is not feasible—because of size, layout, improvements, or because dividing would materially reduce value—the court commonly orders a partition by sale and directs how the sale will occur.
Who may bring a partition action
Any owner of an undivided interest in the property (for example, tenants in common or co-owners) may file. The precise rights and remedies can depend on how title is held (tenancy in common, joint tenancy, community property for married owners, etc.). Montana recognizes partition remedies for co-owners; the statutory provisions governing partition are located in Montana’s property code (see Title 70 of the Montana Code Annotated): Mont. Code Ann., Title 70 — Property.
What happens during a partition-by-sale
If the court orders a sale, it will usually:
- Determine the ownership shares and settle liens, mortgages, and prior claims against the property.
- Appoint a commissioner, referee, or other official to handle the sale or authorize sale by public auction or private sale under court supervision.
- Direct how sale costs, outstanding mortgages, taxes, and liens are paid from sale proceeds, and distribute the net proceeds to the owners according to ownership shares or adjusted shares after accounting for advances, improvements, or waste.
Accounting and adjustments
The court can require an accounting before distributing proceeds. If one owner paid more than his or her share for mortgage payments, taxes, insurance, or necessary repairs, the court can credit that owner before dividing the proceeds. Similarly, if one owner committed waste or caused damage, the court can reduce that owner’s share or require reimbursement.
Practical limits and special ownership situations
Ownership type matters:
- Tenancy in common: Partition actions are the standard remedy; any co-tenant can force partition.
- Joint tenancy: Joint tenants can still seek partition, but survivorship rules can affect the ownership interests if a joint tenant dies before a sale.
- Married owners / community property: Montana is a community-property state; whether property is community or separate property changes the ownership shares and may affect who can sue. If the property is community property, a partition action may still be available but the rights of spouses and the nature of the marital estate will matter.
Alternatives to court
Because litigation is often costly, owners commonly try alternatives first:
- Buyout: An owner who wants out may be offered a cash buyout based on an appraisal.
- Mediation or settlement: Neutral mediation can produce a sale plan, buyout terms, or a timetable for sale acceptable to all.
- Listing and sale by agreement: Owners who can negotiate terms may avoid court entirely by agreeing to sell and splitting proceeds.
Typical timeline and costs
Timing depends on court schedules, complexity, title and lien issues, and whether the sale is contested. Expect several months to over a year in contested cases. Costs include court filing fees, attorney fees, appraisal and survey costs, costs to clear title or pay liens, and sale expenses. The court commonly subtracts these expenses from sale proceeds before distribution.
Where to file and who decides
Partition actions are civil suits filed in Montana district court in the county where the real property is located. A judge decides contested issues; the court may appoint a court official to manage the sale. For the statutory framework and details on property law provisions, see Montana’s property statutes: Mont. Code Ann., Title 70 — Property.
Helpful Hints
- Gather key documents before doing anything: deeds, title report (or the name/title company used), mortgages, tax bills, insurance records, recent appraisals, and any written agreements among owners.
- Check how title is held on the deed—tenancy in common, joint tenancy, or community property—because that affects legal rights and likely outcomes.
- Get at least one independent appraisal to set a realistic market value before making offers or filing suit.
- Consider mediation early. Courts often encourage settlement, and mediation can save time and money.
- If you plan to file for partition, be prepared to account for any payments you made (mortgage, taxes, repairs). Keep receipts and bank records; the court may credit you for those expenditures.
- Expect the court to clear title issues — outstanding liens and judgments usually must be resolved or satisfied from sale proceeds.
- Be aware of tax consequences of a sale (capital gains and basis adjustments). Consult a tax advisor about potential federal and state tax impacts of a forced sale or buyout.
- Talk to a Montana real property attorney early to learn how local courts handle partition and the likely costs and timelines in your county. An attorney can also explain how Montana’s community-property rules might affect married owners.
Important note and next steps
If you are considering forcing a sale, the practical path often starts with: (1) identifying all legal owners and encumbrances; (2) obtaining an appraisal; (3) trying negotiation or mediation; and (4) consulting a local attorney if those steps fail. Filing a partition action is a significant step with legal and financial consequences.
Disclaimer: This article explains general Montana law and is for educational purposes only. It is not legal advice. For advice about your situation, consult a licensed Montana attorney who can evaluate your facts and help you make an informed choice.