Detailed Answer
1. Initiating a Partition Action
In Montana, any co-owner of real property can file a complaint for partition in the district court of the county where the property is located. The statutory basis is § 70-23-202, MCA. The complaint must:
- Name all co-owners (tenants in common or joint tenants).
- Describe the property with sufficient detail.
- State the nature and extent of each party’s interest.
- Request either division in kind or sale.
2. Service and Response
After filing, you must serve the complaint on all co-owners. Each co-owner has 21 days to respond under § 25-5-201, MCA. If a co-owner fails to respond, the court may proceed by default.
3. Physical Division vs. Forced Sale
The court first considers whether it can fairly divide the property “in kind” so each party receives a portion. If physical division is impractical or inequitable, the court orders a sale. Under § 70-23-202, MCA, the judge may:
- Appoint a registered real estate broker or disinterested third party as commissioner.
- Direct the commissioner to advertise and sell the property at public auction.
4. Appointment of a Commissioner
The court’s appointment letter sets sale terms and a timeline. The commissioner must follow the procedures in Montana Code § 70-23-303, MCA. This includes giving public notice and opening competitive bids.
5. Distribution of Proceeds
Once sold, the commissioner submits a report. The court deducts costs (fees, advertising, taxes) and distributes net proceeds to co-owners based on their respective ownership shares under § 70-23-204, MCA.
6. Timeline and Costs
A partition action generally takes 4–8 months from filing to sale, depending on court schedules and property complexities. Costs include court filing fees, service fees, and commissioner’s commission.
Helpful Hints
- Gather deeds and title documents before filing to accurately describe ownership interests.
- Estimate sale costs and potential expenses to understand net proceeds.
- Consider mediation or buyout offers before seeking a forced sale.
- Hire a local attorney familiar with Montana’s partition statutes for guidance.
- Track all deadlines—missed responses can lead to default judgments.
- Ask the court about expedited procedures for urgent sales (e.g., foreclosure-driven partition).