Detailed Answer: How co-owners start a partition action in Montana

This FAQ explains, in simple terms, how co-owners can initiate a partition action under Montana law to divide or sell shared real property. It assumes you start with no legal background. This is a general overview of the typical process in Montana and is not legal advice.

What is a partition action?

A partition action is a court process that lets co-owners of real property ask a Montana district court to divide property among them (partition in kind) or, if division is not feasible or fair, order the property sold and the proceeds divided (partition by sale). Co-owners include tenants in common and, depending on circumstances, joint tenants (though survivorship rights can affect who remains a co-owner).

Who can file?

Any person who owns a real property interest (a deeded share, a recorded ownership interest, or an equitable interest) may file for partition against the other co-owners. The plaintiff must normally be a current co-owner with a legally recognizable interest in the property.

Where to file

File the partition complaint in the Montana District Court for the county where the property is located. District courts handle property disputes and partition actions in Montana.

Basic procedural steps to initiate a partition action

1. Try to resolve it first. Talk with the other co-owners about dividing, selling, or buying out. Courts expect parties to attempt settlement where reasonable.
2. Collect documents. Gather the deed, title report or abstract, mortgage and lien information, property survey if available, tax records, and any agreements among the owners (written agreements, partnership documents, or lease arrangements).
3. Prepare and file a complaint for partition. The complaint should identify the property, describe each party’s interest, name all co-owners as defendants, and state the relief requested (partition in kind or partition by sale). It should ask the court to appoint a commissioner or referee to divide or sell the property if the court orders it.
4. Provide a lis pendens or notice of pendency. In many cases you should record a notice of pendency (lis pendens) with the county clerk and recorder to put third parties on notice that the property is subject to litigation. Check local rules and the court clerk for the appropriate form and timing.
5. Serve all co-owners and interested parties. The defendants must receive proper service of the complaint and summons under Montana rules. That may include heirs, lienholders, or other parties with recorded interests.
6. Request interim relief if necessary. If the property is at risk of loss, waste, or improper use, ask the court for temporary orders (e.g., injunctions, appointment of a receiver, or authorization to collect and account for rents and expenses).
7. Court hearing and determination. The court will hold hearings. If the court finds partition appropriate, it will decide whether a partition in kind is practical. If physical division will work without unfairness or prejudice to the owners, the court may order division. If division is impractical or would substantially reduce value, the court will order sale.
8. Appointment of commissioner or sale process. For division or sale, the court often appoints a commissioner, referee, or special master to survey, subdivide, or sell the property at public auction or private sale under court supervision. The commissioner reports back to the court for a final decree.
9. Accounting and distribution. The court orders the costs of the action, improvements, outstanding liens, taxes, and commissions paid from proceeds before distributing the net sale or assigning divided parcels in accordance with ownership shares or the court’s equitable adjustments.

Key legal issues Montana courts consider

• Whether the property can be fairly and practically divided (partition in kind) without unduly harming its value.
• Whether one co-owner has paid more than their share for upkeep, taxes, or mortgage payments and is entitled to contribution or a credit.
• Whether there are liens, mortgages, or other encumbrances affecting the title that must be resolved before distribution.
• Whether a buyout or negotiated sale between owners is feasible and more efficient than a court-ordered sale.

Statutory sources and court rules

Montana’s statutory scheme for property and related actions appears in the Montana Code Annotated. For statutory text and specific statutory procedures, consult the Montana Code — Title 70 (Property) and the portions that deal with real property disputes and remedies. You can browse Title 70 of the Montana Code at the Montana Legislature website: https://leg.mt.gov/bills/mca/title_0700/. For rules on where to file and courtroom procedure, see the Montana Judicial Branch site: https://courts.mt.gov/.

Typical timeline and costs

Partition actions can take months to over a year, depending on complexity, disputes among owners, title issues, and whether an appeal follows. Costs include filing fees, service fees, title searches, survey costs, commissioner or referee fees, attorney fees if you hire counsel, and costs to market and sell the property. Courts may award some costs and credits between owners based on equities, but parties should budget for litigation expenses.

Practical alternatives to court partition

• Negotiate a private division or buyout (one owner buys others at an agreed price).
• Agree to sell the property cooperatively and divide proceeds.
• Mediation or arbitration to resolve disputes faster and less expensively than a full court proceeding.

Helpful Hints

• Gather all ownership documents, tax bills, mortgage statements, lease agreements, and any correspondence among owners before you file.
• Ask for a title or deed search early to identify liens and other recorded interests.
• Record a lis pendens promptly after filing to protect the property during litigation.
• Consider sending a written settlement demand before filing; courts and judges often expect parties to try to settle first.
• Get a recent survey if you think a partition in kind might work. A survey can show whether the land divides reasonably by acreage, access, and utility connection.
• Think about tax and mortgage consequences — a sale or division can trigger capital gains, payoff obligations, or tax reporting requirements.
• Consider mediation before or during litigation to save time and costs. Many judges encourage or require alternative dispute resolution in property disputes.
• If you own as joint tenants with right of survivorship, check how survivorship affects who remains a co-owner before filing.
• Consult an attorney experienced in Montana real property matters for a tailored strategy—this article cannot substitute for advice about your specific facts.

Disclaimer: This information explains general Montana procedures and common issues in partition actions. It does not constitute legal advice, create an attorney-client relationship, or cover all specifics that might affect your case. For advice about your situation, consult a licensed Montana attorney.