Detailed Answer

If you and another heir own real estate together and one co-owner files a court action to partition the property (that is, to force division or sale), the court will follow South Dakota law and equitable principles to decide whether to divide the land physically or order a sale and split the proceeds.

Key legal points and practical defenses you can raise in South Dakota include the following.

1. Confirm ownership type and title documents

Start by gathering the deed, the will or probate orders that transferred ownership, and the county property records. The form of co-ownership (tenancy in common versus joint tenancy with right of survivorship) determines who has the legal right to force partition. If title transferred to you and the other co-owners as tenants in common, any co-tenant generally can seek partition. If the property passed as joint tenancy with right of survivorship, the right to unilaterally force partition may differ.

2. Ask the court for partition in kind (division) instead of sale

South Dakota courts prefer partition in kind when the property can be divided fairly and without undue injury to any co-owner. You can file an answer or counter-motion asking the court to divide the parcel physically (an in-kind partition) rather than ordering a sale. If the court determines that in-kind division is practicable, it must consider that option first.

3. Show that physical division is feasible or that sale would be inequitable

To support a request for partition in kind, provide evidence such as maps, surveys, appraisals, and expert testimony that show the property can be divided into reasonably equal, marketable parcels. If the property is a single-family home on a single lot, explain how division would work practically — sometimes courts still prefer sale when division would leave nonviable residential lots.

4. Offer a buyout

A common settlement option is to offer to buy out the moving co-owner’s share at fair market value. Present a recent appraisal or two and a written cash or financing proposal to the court and opposing co-owner. Courts often consider voluntary buyout offers as practical resolutions and may pause a sale while parties try to reach terms.

5. Raise equitable defenses and claims

You can assert equitable claims that may alter relief the court awards. Examples include:

• Claiming credits for mortgage payments, property taxes, insurance, or necessary repairs you paid on behalf of the property and requesting an accounting before any sale proceeds are split.
• Asserting estoppel or laches if the moving co-owner waited unreasonably long and that delay prejudiced you.
• Arguing that a forced sale would cause disproportionate harm because one co-owner (for example, an elderly beneficiary or a surviving family member) has a strong nonfinancial interest in keeping the home.

6. Challenge standing, pleadings, or jurisdiction if appropriate

Make sure the partition complaint lists the correct parties, property description, and legal basis. If the complaint fails to name necessary parties, misdescribes title, or the court lacks proper jurisdiction or venue, you can raise those procedural defenses in your answer or a motion.

7. Seek mediation or negotiated settlement

Because partition sales can destroy a sentimental family home and create high transaction costs, South Dakota courts and parties often use mediation. A mediated settlement can yield better financial outcomes (for example, an agreed buyout or structured sale) and reduce legal fees.

8. Preserve and present evidence

Collect documents and evidence promptly: deed, probate order, communications among heirs about the property, receipts for improvements and payments, mortgage and tax records, rental agreements (if any), and any appraisal or survey. Evidence of contributions and expenses often affects the court’s allocation of sale proceeds or credit determinations.

9. Understand likely outcomes and costs

If the court orders a sale, the house will typically be sold at public auction or by court-ordered sale and the proceeds divided among co-owners after paying liens, taxes, costs of sale, and any credits the court awards. Partition actions can be lengthy and costly. Factor attorney fees, court costs, appraisal and survey costs, and potential adjustments for credits into settlement thinking.

10. Where to find South Dakota legal resources

South Dakota’s codified laws and local court resources explain procedures and forms. For statutes and a place to start, see the South Dakota Codified Laws: https://sdlegislature.gov/Statutes/Codified_Laws/. For court forms and local rules, consult the South Dakota Unified Judicial System: https://ujs.sd.gov/.

Helpful Hints

• File an answer and any counterclaims promptly; missing deadlines can limit defenses.
• Get a current appraisal early to support buyout offers or to challenge a sale price claim.
• Keep careful records of payments you made for mortgage, taxes, insurance, and repairs — courts frequently adjust proceeds based on contributions.
• Consider whether you can realistically live with a physical division; if not, prepare a compelling buyout plan or settlement offer.
• Explore mediation before litigating — it can protect family relationships and save money.
• If you live in the home and face an immediate threat of eviction after a sale, raise those facts to the court and seek temporary relief or time to relocate as part of settlement talks.
• Talk to a South Dakota attorney experienced in real property and probate matters. Ask about experience with partition cases and typical outcomes in your county.