FAQ: Filing a partition-for-sale action in South Dakota when some heirs refuse to sell

Short answer: In South Dakota any cotenant (including an heir or sibling with an ownership share) can file a partition action asking the court to divide or sell the property even if a minority of the owners object. The court will try to divide the land in kind if reasonably possible; if that is impractical, it will order a sale and divide the proceeds according to each owner’s legal share. This process follows South Dakota property law and civil procedure. This is educational information, not legal advice.

What is a partition action under South Dakota law?

A partition action is a lawsuit one or more co-owners file to divide title to real property or to force its sale when co-owners cannot agree. Partition preserves each owner’s rights and provides a judicial mechanism when private negotiation fails. For South Dakota statutes on property and partition, see SDCL Title 21 (Property): https://sdlegislature.gov/Statutes/Codified_Laws/DisplayTitle.aspx?Type=Title&Title=21

Who can file?

Any person who holds a legal interest in the land (joint tenants, tenants in common, heirs, devisees) may file.
Heirs who inherited as tenants in common commonly use partition when some siblings want to sell and others want to keep the land.

Where do you file?

File the partition complaint in the county circuit court where the property is located. Use the South Dakota Unified Judicial System for local court contact and forms: https://ujs.sd.gov/

How the process generally works (step-by-step)

Prepare basic documentation: deed(s), death certificate if inherited, any wills or probate orders that establish who owns what share, county property tax records, and any title information. If title is unclear, consider a title search before filing.
Try a negotiated solution first. Offer a buyout, mediation, or an agreement for a timed sale. Courts favor parties who attempt reasonable settlement.
File a complaint for partition in the proper county circuit court. The complaint identifies the property, states each party’s claimed share, and asks for partition in kind or for sale if partition in kind is impractical.
Serve all cotenants and other interested parties (creditors, lienholders). The court must ensure all owners are notified so it can determine ownership shares and any debts affecting the land.
Court considers whether partition in kind (physically dividing the land) is feasible without materially prejudicing any party. If feasible, the court may order a division and appoint commissioners to carry it out.
If partition in kind is not feasible (for example because the tract cannot be divided fairly or division would reduce value), the court orders a sale and directs how the sale will occur (public auction or other method). The court will appoint a commissioner or sale officer to handle sale logistics.
After sale, the court allocates proceeds to pay liens, costs, and then distribute net proceeds to cotenants according to their legal interests.

Key legal points to understand

Minority owners cannot permanently block a partition; any cotenant can force the process through court.
The court decides whether to partition in kind or order sale. Courts prefer division in kind if it is equitable and practical; otherwise they will order a sale.
Court may adjust money distributions for contributions: payments for taxes, necessary improvements, rents and profits, or waste may be credited or charged when distributing sale proceeds.
Liens and mortgages on the property typically survive and must be satisfied out of the sale proceeds or otherwise handled in the distribution.

Typical timeline and costs

Times vary by county and complexity. A simple uncontested partition can finish in a few months. Contested partition actions often take 6–12 months or longer. Expect costs for filing fees, service, appraisals, possible commission fees for sale, and attorney fees if you hire counsel. The court may order costs apportioned among the parties.

Practical steps to take before filing

Gather and copy deeds, wills, probate orders, tax bills, and mortgage statements.
Identify all people with an ownership claim and their contact information.
Get an independent real estate appraisal or market analysis to understand current value.
Consider mediation or a buyout offer to minority owners; an agreed buyout often saves time and money.
Talk with a real property attorney to review your documents and advise whether partition is likely to succeed and what remedies to request.

Common outcomes

Partition in kind: the land is physically divided and each owner receives a separate parcel proportional to their share.
Partition by sale: the property is sold at public auction or court-approved sale; net proceeds are divided by ownership share after paying liens and costs.
Settlement: parties may agree to buyouts, sale by mutual agreement, or other creative solutions (e.g., one sibling keeps the land and pays the others).

When to hire a lawyer

Consider hiring an attorney if any of the following apply: ownership is disputed or unclear, there are mortgages or liens, the property has significant value, multiple unknown heirs exist, minority owners actively contest, or you want help negotiating a buyout. A lawyer can prepare the complaint, manage service and discovery, represent you at hearings, and protect your financial interests.

Helpful resources

South Dakota Codified Laws (Title 21 — Property): https://sdlegislature.gov/Statutes/Codified_Laws/DisplayTitle.aspx?Type=Title&Title=21
South Dakota Unified Judicial System (court contacts, forms): https://ujs.sd.gov/
State Bar of South Dakota — lawyer referral and resources: https://www.sdbar.org/

Helpful Hints

Document everything. Keep written records of offers, payments, improvements, taxes paid, and communications among siblings.
Start with negotiation and mediation. Courts appreciate settlement attempts and a voluntary sale reduces legal costs.
Get a title search early. Unknown liens or claims can derail a sale and change net proceeds expectations.
Obtain an appraisal. A realistic value helps set buyout offers and reserve prices if the court orders a sale.
Consider temporary agreements for access, taxes, and insurance while the dispute continues to avoid waste and additional claims.
If you plan to keep the land, prepare to buy out other owners at fair market value; courts sometimes give a cotenant a right to purchase their share before sale.
Be prepared for costs: partition actions are often more expensive than a negotiated sale. Factor attorney and sale fees into decisions.

Disclaimer: This article explains general South Dakota law about partition actions and is intended for educational purposes only. This is not legal advice. For advice about your specific situation, contact a licensed South Dakota attorney.