Can I Ask the Court to Appoint a Commissioner for a Private-Party Sale in a New Mexico Partition Action?

Short answer: Yes—under New Mexico law, a party to a partition action can ask the court to appoint a commissioner (sometimes called a special master) to handle the sale of the property. However, the court controls whether the sale is by public auction or by private sale, will require notice to all co-owners and interested parties, and will review the fairness and terms of any private sale before confirming it.

Disclaimer: This is general information, not legal advice. I am not a lawyer. If you need advice about your particular situation, consult a licensed New Mexico attorney.

Detailed answer — how this works in New Mexico

Partition is the court process used when co-owners of real property cannot agree about continued joint ownership. When division in kind is impractical (for example, where the land or building cannot be physically divided without loss of value), New Mexico courts commonly order the property sold and the net proceeds distributed among the co-owners.

Key legal authorities and procedural sources you should consult include the New Mexico statutes on property/partition and the New Mexico court rules. The state legislature and the courts set the framework for appointing a commissioner and for confirming sales. See the New Mexico Legislature statutes search page: https://www.nmlegis.gov/Legislation/Statutes, and the New Mexico Courts rules: https://nmcourts.gov/rules/.

1. When a commissioner can be requested

– Either party who files (or is served in) a partition action may move the court to appoint a disinterested commissioner or special master to handle the sale process when a sale is necessary.

– The court decides whether to divide the property in kind or order a sale. If sale is ordered (or agreed to by the parties), the court may appoint a commissioner to carry out the sale, collect bids, hold the closing, and report back to the court.

2. Public sale vs. private sale

– Default practice in many jurisdictions is a public sale (often a judicial or sheriff’s sale) to ensure transparency and establish fair market value.

– A private sale to a particular buyer can be allowed, but the court will closely scrutinize such deals. Courts permit private sales when they are in the best interest of the estate, the sale price is fair, adequate notice is given to all parties, and the sale is not the product of fraud, collusion, or unfair advantage.

3. What the court will require before approving a private sale

Notice: All co-owners and interested parties must receive proper notice and an opportunity to object.
Independent valuation: The court will want evidence of fair market value—commonly an appraisal or comparative market analysis.
Competitive process or justification: The court will want proof that a private sale either involved adequate efforts to obtain higher offers or that a private sale is justified (e.g., buyer is best or only feasible purchaser, rapid sale needed to avoid deterioration, or sale terms are otherwise in the estate’s best interest).
Disclosure of conflicts: Any relationship between the buyer and the commissioner, or between buyer and any co-owner, must be disclosed; the court will likely refuse to approve a sale tainted by undisclosed conflicts or self-dealing.
Bond or security: The court may require the commissioner to post a bond guaranteeing faithful performance of duties.
Confirmation hearing: The sale will normally be subject to a confirmation hearing where the court reviews the commissioner’s report, sale terms, and any objections.

4. Typical procedure and filings

File or respond in the partition action. If you are the buyer’s contract-holder or a co-owner wanting the sale, file a motion asking the court to order sale and to appoint a commissioner for the sale process.
Propose terms. Attach the proposed sale contract, appraisal, and a statement explaining why a private sale is appropriate and how the process protects other parties’ interests.
Notice. Serve all co-owners, lienholders, and other interested parties with the motion and proposed sale terms per court rules.
Hearing. The court will set a hearing. Expect the judge to ask about marketing efforts, appraisal data, and any relationship between buyer and seller or commissioner.
Commissioner’s duties. If appointed, the commissioner often performs steps such as collecting offers, conducting closing, paying liens, reporting the sale to the court, and submitting a proposed distribution of proceeds.
Confirmation. After sale, the court will hold a confirmation hearing and decide whether to approve the sale and distribute proceeds or to order a public sale instead.

5. Practical and ethical considerations

Unanimous consent makes private sale approval easier. If all co-owners agree and the court is convinced the price is fair, the court is more likely to approve a private sale without objection.
Transparency matters. Provide appraisal evidence and full disclosure of any related-party relationships.
Watch for creditors and liens. The commissioner or the court will ensure liens and costs are paid from sale proceeds before distributing net proceeds to co-owners.
Potential for challenge. Co-owners who believe the sale was unfair, not properly noticed, or the product of collusion can object and seek to set aside the sale.

Helpful hints — to prepare for asking the court to appoint a commissioner for a private sale

Gather documentation: purchase agreement, earnest money terms, full appraisal or broker price opinion, title report showing liens/encumbrances, and evidence of marketing or efforts to solicit competitive offers.
Disclose relationships: be explicit about any ties between buyer, seller, or potential commissioner. Undisclosed relationships create strong grounds for the court to reject or later unwind the sale.
Consider a report from a licensed appraiser: courts give weight to a neutral appraisal showing the sale price is at or near market value.
Propose protective terms: offer a clear closing timeline, escrow arrangement, and provisions for paying liens and costs—this helps the court feel comfortable confirming a private sale.
Prepare for bond: be ready to suggest or post a bond if the court asks the commissioner to be bonded.
Talk to an attorney: a New Mexico attorney experienced in partition matters can draft a motion, negotiate consent language with co-owners, and present evidence effectively at the confirmation hearing.

Where to look for the law and local procedures

– New Mexico statutes and legislative materials: https://www.nmlegis.gov/Legislation/Statutes

– New Mexico courts rules (procedures, service, hearings, master/commissioner appointment practice): https://nmcourts.gov/rules/

– Local district court rules and judge’s procedures: check the website for the district court where the property is located for any local requirements (motions calendar, required forms, etc.).

Final tips

If you want the court to appoint a commissioner to carry out a private sale, prepare a transparent, well-documented motion explaining why a private sale is preferable and how the interests of all co-owners and creditors will be protected. Courts are cautious about private sales because they remove the competitive element of an auction; the clearer and more objective your supporting evidence (appraisal, notice, lack of conflicts), the higher the chance the court will approve appointment of a commissioner and confirmation of the private sale.

Again, this is general information, not legal advice. Consult a licensed New Mexico attorney to discuss the facts of your case and to prepare motions and supporting documents tailored to your situation.