Disclaimer: This article is for educational purposes only and does not constitute legal advice.
Detailed Answer
Starting a Partition Action
Under South Dakota law, any co-owner of real property may file a petition for partition in the circuit court of the county where the land lies. The petition must include a legal description of the property and the names and addresses of all known co-owners. See SDCL 21-51-1.
Partition in Kind vs. Partition by Sale
South Dakota favors partition in kind—dividing the land physically among co-owners according to their ownership shares. If the court finds a fair physical division impractical or prejudicial, it may order a public sale of the entire property. Proceeds then divide among the parties. See SDCL 21-51-8.
Appointment of Commissioners
After filing, the court appoints three disinterested commissioners to survey the land, value it, and propose either a division plan or a sale. These commissioners inspect the property, set boundaries if dividing in kind, or prepare sale terms if ordering a sale. Parties may object to the commissioners’ report, and the court holds a hearing to resolve any disputes.
Court Judgment and Distribution
The court enters a judgment confirming either the division plan or the sale. If a sale occurs, the court directs payment of mortgages, liens, taxes, and court and commissioner fees from the sale proceeds. The remainder distributes according to each owner’s share.
Helpful Hints
- Review deed and title records to confirm all co-owners before filing.
- Collect any agreements (e.g., joint tenancy or tenancy in common) that may affect partition rights.
- Consider mediation to reach an out-of-court agreement and avoid legal costs.
- Hire a licensed land surveyor early to help commissioners with accurate boundary lines.
- Prepare funds for court filing fees and commissioner compensation.