Understanding Partition Actions Under New Mexico Law

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance on your specific situation.

Detailed Answer

When two or more people share ownership of real property in New Mexico—such as siblings inheriting a vacation home—they may disagree on what to do with it. A partition action forces a court to divide or sell the property so each owner can receive their fair share. Partition actions in New Mexico follow Section 42-6-1 through 42-6-41 of the NMSA 1978.

Here’s how the process typically works:

Filing the Complaint: One co-owner files a complaint in district court requesting partition. The complaint names all co-owners and describes the property, ownership interests, and the relief sought.
Serving Co-Owners: The complainant serves each co-owner with a copy of the complaint and a summons. Co-owners have a set period (usually 30 days) to respond.
Preliminary Matters: If the property produces income (rent, crops, etc.), the court may require an accounting. The court can order the parties to deposit rents or profits into the court registry to cover expenses like taxes or maintenance.
Determining the Type of Partition: New Mexico courts can order two types of partition:

Partition in Kind: The court physically divides the land so each owner gets a portion roughly equal to their share. This works best when the property can be split without significantly diminishing its value.
Partition by Sale: If the land can’t be fairly divided—due to its shape, improvements, or value—the court orders a sale. A court-appointed commissioner or auctioneer conducts the sale, and the net proceeds are distributed to the owners based on their ownership percentages.

Appointing a Commissioner: The court often appoints a disinterested commissioner or referee to survey the land, recommend boundaries for in-kind division, or manage the sale process.
Final Judgment: After the division or sale, the court enters a final judgment. For in-kind partitions, deeds are issued to each co-owner. For sales, proceeds are distributed after paying expenses, liens, and commissions.

Helpful Hints

Document your ownership percentage clearly—written deeds and agreements help the court allocate shares accurately.
Consider mediation first. Settlement outside court can save time and legal fees.
Budget for court costs, survey fees, and commissioner fees—they reduce the net proceeds each owner receives.
Stay involved. Attend hearings and respond promptly to court notices to protect your rights.
Keep records of any income or expenses related to the property. Good documentation simplifies the accounting process.