Detailed Answer

This section explains, in plain language, how to start and pursue a partition action in New Mexico to divide inherited real property when a co-owner will not cooperate. The explanation assumes no prior legal knowledge and uses a short hypothetical to illustrate the typical path.

Quick hypothetical

Imagine three siblings inherit a small duplex. One sibling wants to sell, one wants a buyout, and the third refuses to cooperate. After negotiation fails, the sibling who wants resolution files a partition action in district court asking the court to divide or sell the property and distribute proceeds.

What a partition action is under New Mexico law

A partition action asks the court to divide co-owned real property among the co-owners (partition in kind) or, if division is impractical, to order a public sale and divide the proceeds (partition by sale). The court decides the fair method and may appoint a commissioner to carry out the sale or division. New Mexico statutes and court rules govern how to bring the action and how the court handles the matter. See the New Mexico statutes and court rules for more details: New Mexico Statutes and the New Mexico Judicial Branch (courts) pages: https://www.nmlegis.gov/Legislation/Statutes and https://www.nmcourts.gov/rules/.

Step-by-step: how to file and pursue a partition action in New Mexico

1. Confirm ownership and title. Gather the deed(s), the will or probate documents showing inheritance, the decedent’s death certificate, and any recorded liens, mortgages, or easements. Determine whether the property is held as joint tenants, tenants in common, or in another form—partition typically applies to tenants in common and similar co-ownerships.
2. Check whether the estate has been probated. If the property passed through probate, collect the personal representative’s records or final decree. If the property is still in probate, you may need to coordinate with the probate court or wait until the estate is closed before filing.
3. Decide the relief to seek in the complaint. Typical requests: a partition in kind (actual division), a partition by sale (public sale with proceeds divided), appointment of a commissioner to divide/sell, payment of costs and commissions out of sale proceeds, and accounting for rents/expenses. Include a request for the court to determine lien priorities if mortgages or judgments exist.
4. File the complaint for partition in the proper court. In New Mexico, file in the district court in the county where the property is located. The complaint names all owners and anyone with recorded interest in the property as defendants. The court needs personal jurisdiction over co-owners, so correct service of process is essential. (See the New Mexico Judicial Branch for district court information: https://www.nmcourts.gov/.)
5. Serve all parties. Proper service on each co-owner and any lienholders is required. If a co-owner cannot be found or is intentionally evading service, New Mexico law allows alternative methods such as service by publication—follow the court’s rules for affidavit and publication procedures.
6. Attend hearings and mediation if ordered. The court will set scheduling dates. Some courts require or encourage mediation or settlement efforts before an in-court hearing or sale. If parties negotiate a buyout, the court can approve and enforce the buyout instead of selling.
7. If division in kind is impractical, the court may order a sale. The court often appoints a commissioner (or special master) to conduct a sale. The commissioner follows court directives about marketing, minimum bid, and distribution of proceeds. Costs, commissions, and liens are typically paid first; remaining net proceeds are divided among owners according to ownership shares.
8. Final accounting and decree. After sale or division, the commissioner files a report. The court reviews the report, resolves objections, and enters a final decree distributing property or funds and closing the action.
9. Appeals and enforcement. Parties usually have a short window to appeal the court’s decisions. The final decree may be recorded to clear title or show the new ownership interest.

Special issues when a co-owner refuses to cooperate

• If a co-owner refuses to sign any agreement, the court can still proceed after proper service and order a sale.
• If a co-owner is occupying the property and refusing access, the court can order rents, partition of occupancy, or eviction as appropriate.
• If a co-owner has unequal contributions to improvements or mortgage payments, ask the court for an accounting so the overpaying co-owner can be credited before distribution.

Evidence and documents you should gather before filing

• Recorded deed(s) and chain of title
• Death certificate and probate documents (if applicable)
• Mortgage statements and other lien documents
• Property tax records and utility bills
• Title insurance policy (if any) and past surveys
• Appraisal or market-analysis data supporting value
• Records of rent, repairs, maintenance expenses, and improvements

Timing, costs, and likely timeline

Simple, uncontested partitions can resolve in a few months. Contested matters requiring sale, discovery, and multiple hearings often take 6–18 months or longer. Costs include court filing fees, service costs, commissioner or referee fees, appraisal and survey fees, advertising costs for sale, and attorney fees if you hire counsel. If the court awards sale costs and commissions, those are deducted before share distribution.

Relevant New Mexico law references

Partition actions are governed by New Mexico statutes and district court procedures. For statutory language and specific provisions, consult the New Mexico statutes and the New Mexico Judicial Branch rule pages: https://www.nmlegis.gov/Legislation/Statutes and https://www.nmcourts.gov/rules/. Your local district court can advise on local practices and required forms.

When to hire an attorney

Consider hiring an attorney when the matter is contested, when title or lien priorities are unclear, when co-owners refuse service, when there are complex taxation or accounting questions, or when the property is high-value. An attorney can prepare pleadings, handle service and discovery, represent you at hearings, and negotiate or litigate remedies to protect your financial interest.

Disclaimer: This article explains general information about partition actions under New Mexico law and uses a hypothetical for illustration. It is not legal advice and does not create an attorney-client relationship. For advice about your specific situation, consult a licensed New Mexico attorney.

Helpful Hints

• Start by collecting the deed, death certificate, and any probate paperwork before contacting counsel or filing.
• Check county records online for liens and recorded interests—knowing who else has a claim helps you name proper parties in the complaint.
• Try to get a current market appraisal so you and the court understand value before asking for sale or division.
• Consider a buyout offer and be ready to present it to the court as an alternative to sale; courts often prefer settlement where feasible.
• If a co-owner avoids service, act quickly—ask the clerk about publication requirements and timelines for substituted service in your county’s district court.
• Be prepared for the court to require an accounting of rents, expenses, and contributions; keep detailed records.
• Ask the court about mediation or settlement programs early; resolving the dispute outside court often saves time and money.
• If the property is occupied, document use and any agreements about rent or occupancy to protect your claim to compensation.
• Understand that mortgages and liens are paid from sale proceeds in priority order; unresolved liens reduce net proceeds distributed to owners.
• Contact your county clerk or the district court clerk where the property lies for information about filing fees, local forms, and service rules.