Detailed answer

If co-owners of Montana real property cannot agree on use, sale, or division, one or more co-owners can ask a court to resolve the dispute by filing a partition action. A partition action asks the court to physically divide the property among the owners (partition in kind) or, if physical division is impractical or would be unfair, to sell the property and divide the proceeds (partition by sale). Montana follows the general civil-process approach used across the U.S., and the process typically includes filing a complaint, serving all interested parties, presenting evidence about ownership and how division should occur, and asking the court to appoint a commissioner to carry out the division or sale.

Who can bring a partition action?

Any person who has an ownership interest in the property—usually tenants in common or joint tenants—may file a partition action. Other parties with recorded interests (such as mortgage holders or lienholders) must be named and served because their liens affect how sale proceeds are distributed.

Basic steps to start a partition action in Montana

1. Confirm ownership and standing. Gather the deed, title evidence, mortgage statements, and any agreements among the owners. Confirm that you hold a recognized property interest.
2. Try to resolve the dispute first. Courts prefer that co-owners attempt settlement, mediation, or buyout. A negotiated buyout or sale often saves time and expense.
3. Prepare and file a complaint for partition. File a civil complaint in the appropriate Montana district court asking for partition. The complaint should identify the property, describe each owner’s interest, state why partition is requested, and specify whether you seek partition in kind or by sale.
4. Name and serve all necessary parties. All co-owners, mortgage holders, lienholders, and other parties with recorded interests must be served. Montana rules require proper service so the court can assert jurisdiction over each party.
5. Ask for appointment of commissioners or a sale. If the court orders partition in kind, it typically appoints commissioners to survey and divide the land. If in-kind division is impractical, the court may order a sale—often by a commissioner or sheriff—and distribute proceeds after paying liens and costs.
6. Attend hearings and present evidence. Present deeds, surveys, valuations, and any agreements. The court will decide whether to divide the property physically or order a sale.
7. Commissioner actions, sale, and distribution. The court-appointed commissioner carries out division or sale. Sale proceeds pay mortgages, liens, taxes, and commission costs; remaining proceeds are divided among owners according to their interests.

Partition in kind vs. partition by sale

Montana courts prefer partition in kind—physically dividing the property—when it is fair and practical. If physical division would materially diminish property value or is impracticable (for example, a single-family house on a small lot), the court will order a sale and divide proceeds. The court weighs multiple factors: tract size and shape, improvements, access to roads, cost of division, and fairness among owners.

Practical, procedural, and legal details specific to Montana

• File the complaint in the Montana District Court for the county where the property is located.
• Recorded mortgages and liens survive a partition; the court will treat these as claims on sale proceeds. Mortgage holders must be named and given notice.
• Costs of partition (commissioners, sale expenses, advertising, surveys) typically come out of the sale proceeds before owners receive their shares. A court can award costs and attorney fees in certain circumstances.
• Title problems, adverse claims, or unserved heirs can complicate or delay the action. A party with an unknown interest may be joined or the plaintiff may request the court to provide special notice or to allow service by publication if parties cannot be located.
• Montana’s statutory and court rules control the procedure. For the text of Montana statutes and rules related to real property and civil procedure, consult the Montana Code and Montana Judicial Branch resources: Montana Code Annotated (Title 70 and related chapters) at https://leg.mt.gov/bills/mca/ and Montana Courts at https://courts.mt.gov/.

Evidence and documentation to prepare

Gather these items before filing:

• Current deed and chain of title showing each co-owner’s interest.
• Property legal description and a recent survey if available.
• Mortgage and lien payoff statements.
• Tax bills, rent records (if leased), and evidence of maintenance or improvements.
• Any written agreements among owners (co-ownership agreements, buy-sell agreements).

Timeline and likely costs

Time to resolution varies. A straightforward partition might take several months; contested cases with title disputes, multiple lienholders, or contested valuations can take a year or longer. Costs include filing fees, service fees, survey and appraisal costs, commissioner or sheriff sale costs, and attorney fees. These costs are usually deducted from sale proceeds or apportioned by the court.

Alternatives to a partition action

• Negotiated buyout where one owner purchases others’ interests.
• Mediation or settlement to sell to a third party and split proceeds without court involvement.
• Refinancing or subordinating liens so one owner can buy out others.

For detailed statutory language and procedures, start with the Montana Code online and the local district court rules: Montana Code Annotated (search Title 70 and related civil procedure sections) at https://leg.mt.gov/bills/mca/. For court-specific forms and filing procedures, consult the Montana Judicial Branch site at https://courts.mt.gov/.

Important: The information above explains general Montana practice. Statutes and rules can change; local court procedures vary. This is educational information and not legal advice.

Helpful Hints

• Before filing, ask the court clerk or visit the Montana Judicial Branch website for local filing requirements and form guidance: https://courts.mt.gov/.
• Attempt mediation or a written buyout offer first—settlement can save time and money.
• Get a current market appraisal and, if relevant, a recent survey to support your request for in-kind division or sale pricing.
• Name and serve every recorded interest holder (mortgages, mechanic’s liens, judgment lienholders) to avoid later challenges.
• Keep detailed records of expenses, improvements, and rents; courts consider these when allocating credits or reimbursements.
• Consider temporary relief (injunction) if a co-owner is damaging the property or attempting an unauthorized sale.
• Ask about tax consequences of a sale or buyout—capital gains, basis adjustments, and possible 1031 exchange rules may apply.
• Consult a Montana real estate attorney early if the title is complicated, parties are numerous, or the property has significant value—attorneys can explain options and represent you in court.

Disclaimer: This article provides general information about Montana partition procedure. It is not legal advice, does not create an attorney-client relationship, and is not a substitute for consulting a licensed attorney about your specific situation.