Detailed answer — how partition and sale work under New Mexico law

When two or more people own property together and one owner files a partition action, the court must determine whether the property can be divided in kind (each owner receives a separate physical portion) or whether a sale is necessary. If the other owner asks only for a sale, the court can still consider alternatives before ordering sale, and it must divide proceeds fairly after sale, accounting for mortgages, liens, expenses, and any unequal contributions.

Key legal concepts to understand:

• Partition in kind — the ideal result when the property can be physically divided so each owner gets a share. This may be impossible for a single-family home.
• Partition by sale — the court orders the property sold and the net proceeds divided among the owners according to their ownership shares after paying debts and costs.
• Buyout or allotment — one co-owner may buy the others out at fair market value or the court may allow an allotment (awarding the property to one owner with adjustments in money to reflect differing shares).
• Accounting and credits — the court can award credits for mortgage payments, improvements, taxes, or other contributions one owner made that benefitted the property.

New Mexico statutes and court practice govern partition actions and how proceeds are divided. For general information and text of New Mexico statutes, see the New Mexico Legislature’s website: https://www.nmlegis.gov/. You can also find court self-help resources at the New Mexico Courts site: https://www.nmcourts.gov/self-help/.

If the other side only asks for a sale, your practical options

Below are concrete steps and legal responses you can use or discuss with an attorney:

1. Respond to the complaint. You must file an answer or other responsive pleading in the time allowed by the court rules. Failure to respond can lead to a default judgment ordering sale or other relief.
2. Ask the court for partition in kind or a buyout. File a counterclaim or motion asking the court to consider an allotment (give you the house and require you to pay the others) or to set a buyout procedure. Courts will consider whether physical division is practical and whether a buyout is equitable.
3. Request an appraisal and accounting. Ask the court to order one or more appraisals to determine fair market value and an accounting to document who paid mortgages, taxes, insurance, or made improvements. This helps set a buyout price and credits owed.
4. Propose equitable terms. Offer a structured buyout: a lump-sum payment, installment buyout, or mortgage assumption. A written settlement offer can lead to a negotiated solution and avoid sale costs.
5. Seek temporary relief if needed. If a sale threatens irreparable harm (for example, a forced sale at an undervalue or pending tax foreclosure), you can ask for a temporary restraining order or preliminary injunction to pause sale until the court hears evidence.
6. Use mediation or settlement conferences. Many courts encourage or require mediation. Using a neutral mediator often produces buyouts or structured settlements that courts will approve.
7. Protect mortgages, liens, and possession. A court-ordered sale does not erase secured debts. Ensure mortgage payments continue; if you remain in possession, document payments and repairs to claim credits later.

How a court typically divides proceeds

If the court orders sale, it will usually:

• Pay off liens and mortgages from sale proceeds.
• Pay sale costs (attorneys’ fees if authorized, advertising, trustee/commissioner costs, closing costs).
• Divide the remaining net proceeds among owners according to ownership shares (unless the court orders adjustments for contributions or inequities).

The court may give credits for: mortgage payments made by one owner, payments for necessary repairs or improvements, property taxes, or other contributions that decreased debt or increased value. Keep records and receipts for any money you spent on the property.

Typical timeline and costs

Partition actions can take months to over a year depending on contested issues (value, credits, liens). Selling a house through court can reduce sale price (court sales or auctions often attract discount buyers) and add costs (appraisals, sale fees, attorney fees). That is why buyouts or negotiated sales are often better for owners who want fair value.

Hypothetical example

Two siblings each own 50% of a house. One sibling files for partition and asks only for a sale. The other sibling responds and requests a court-ordered appraisal and offers to buy the sibling’s 50% at fair market value. The court orders an appraisal. With appraisal in hand, the sibling makes a written buyout proposal. After negotiation, the parties agree to a structured buyout (installment payments over 2 years secured by a mortgage). The court approves the settlement and dismisses the sale request. If negotiations had failed, the court would have ordered a sale and split net proceeds after paying liens and costs.

When you should definitely get an attorney

Consult an attorney if any of these apply:

• There are significant mortgages or other liens on the property.
• You believe you are owed credits for payments or improvements.
• The opposing owner is seeking immediate sale without accounting.
• There are complex title issues, multiple owners, or unequal ownership shares.
• Someone threatens to sell the property outside court or force a sheriff sale.

An attorney can draft a strong response, ask for specific relief (appraisal, accounting, buyout terms), and negotiate or litigate credit issues and sale procedures.

Helpful Hints

• Do not ignore the court papers. Missing a deadline can result in a sale order you did not contest.
• Gather documentation now: payment records, mortgage statements, receipts for repairs/improvements, property tax bills, and any written agreements among owners.
• Ask for an appraisal early. A credible appraisal is the basis for any fair buyout offer.
• Consider mediation — it often saves time and money and leads to better sale outcomes than a public auction.
• If you continue living in the property, keep paying the mortgage, taxes, and insurance and keep records — those payments can matter at settlement or trial.
• Understand that a court sale may be by auction and often brings a lower price than an open-market sale — a negotiated sale or buyout can preserve more value.
• Protect lien priority: a buyer at a court sale takes subject to existing superior liens; confirm how debts will be handled before agreeing to terms.