Detailed answer — how partition actions work in New Mexico

Below is a step‑by‑step explanation using common hypothetical facts. Imagine your father died and you and your sibling now hold the house as co‑owners (for example, tenants in common). You disagree about keeping the property. You want the house sold and the money split. Here’s what typically happens in New Mexico.

1. Confirm who actually owns the property

Before any court action, check the deed and probate status:

• If the deed lists both you and your sibling as co‑owners now (for example, on the deed or a transfer that passed title outside probate), either of you can usually bring a partition action.
• If the house title is still only in your father’s name (it’s part of his estate), the estate or personal representative must be involved. You may need to open probate or get court approval to handle the real property before a partition can proceed.

2. Determine the type of co‑ownership

New Mexico law treats joint tenancy (with right of survivorship) and tenancy in common differently. If the title was joint tenancy and the survivor rule operated, the surviving co‑owner may now own the whole property outright. If the co‑ownership is tenants in common, each owner has a share that can be partitioned.

3. Attempt informal resolution first

Courts prefer parties try to resolve disputes before litigation. Options include:

• One co‑owner buying out the other using an independent appraisal to set price.
• Agreeing to a private sale and dividing proceeds.
• Mediation or neutral valuation to avoid the court process (faster and cheaper).

4. Filing a partition action in District Court

If negotiation fails, a co‑owner files a civil partition action in the New Mexico District Court in the county where the property lies. The complaint asks the court to either (a) divide the land physically—partition in kind—or (b) order a sale and split the proceeds if division in kind is impractical.

5. What the court does in a partition case

• The court will examine title and claims by each party, including liens, mortgages, or homestead/exemption claims.
• If the court concludes physical division is feasible without undue prejudice, it can order a partition in kind (divide the land into portions reflecting each owner’s share).
• If division in kind is impractical (common with a single-family house on one lot), the court will usually order the property sold and distribute the net proceeds among co‑owners according to their ownership shares.
• The court may appoint commissioners or a special master to appraise, manage, and conduct the sale. The court also allocates costs, taxes, and may award attorney fees in certain circumstances.

6. Practical effects and costs

Partition litigation can take months. Court costs, appraisal fees, real estate commissions, and legal fees reduce the sales proceeds. The court may order offsets for outstanding mortgages, property taxes, or improvements made by one co‑owner.

7. Probate interactions

If the property is part of the decedent’s estate, you generally must resolve probate questions first. An estate’s personal representative can join a partition action if necessary. If someone holds the property as a devisee but title hasn’t been transferred, the court will ensure the estate’s interests are addressed before final distribution.

8. Emergency or interim relief

If a co‑owner is squatting, damaging the property, or risking its value, you can ask the court for temporary orders (like appointing a receiver, prohibiting waste, or requiring payment of taxes and insurance pending final resolution).

9. Where to find New Mexico law on partition

Partition rules and procedures derive from New Mexico statutes and court practice. For statute text and related provisions, consult the New Mexico Statutes and Constitution on the Legislature’s website and the New Mexico Courts resources:

• New Mexico Statutes and Constitution (Legislature)
• New Mexico Courts (Judicial Branch) – Self Help and Civil Resources

10. When to hire an attorney

Consider hiring a New Mexico real estate or civil litigation attorney if:

• Title is unclear or still in probate.
• There are mortgages, liens, or creditor claims against the property.
• Your co‑owner opposes sale or there are allegations of wrongdoing (e.g., hiding rents or damaging the property).
• You want a court to enforce temporary protections or an appointed receiver.

An attorney can advise whether a buyout, negotiated sale, or partition litigation best protects your financial interest.

Illustrative hypothetical timeline

Hypothetical: You file a partition complaint. The court issues temporary orders protecting the property, appoints commissioners to appraise, and schedules hearings. If commissioners find physical division impractical, the court orders sale, a sheriff’s or broker’s sale occurs, liens are paid, and the net proceeds are distributed. This process can take 6–18 months depending on complexity.

Important legal note: This article explains general legal concepts under New Mexico law but does not give legal advice for your specific situation. Consult a licensed New Mexico attorney to apply the law to your facts.

Helpful Hints

• First, pull a copy of the deed from the county clerk/recorder’s website to see how title is held.
• Check whether the deceased’s estate has open probate; coordinate with the personal representative if so.
• Get a current market appraisal so any buyout offer or division calculation is realistic.
• Consider mediation before filing suit — it often saves money and time and preserves family relationships.
• Understand that a forced sale reduces proceeds by court costs, appraisals, commissions, and attorney fees.
• Keep records of payments you made for mortgage, taxes, insurance, or repairs — the court may adjust distributions to reflect unequal contributions.
• If your co‑owner is withholding access or failing to maintain the property, ask a lawyer about temporary relief like a receiver or injunction.
• Ask about alternatives such as selling to a third party by agreement, a structured buyout, or partitioning the land in kind if the lot allows it.
• Find resources: start at the New Mexico Courts self‑help pages and the Legislature’s statutes page linked above for current rules and forms.

Final note: Partition is a powerful remedy but often costly and emotionally fraught in family cases. Explore negotiation first, then consult a New Mexico attorney experienced in real estate and probate litigation to protect your interests.