Detailed Answer
This section explains, in plain English, how someone who holds an inherited ownership interest in real property in Wisconsin can force a sale through a partition action. This is an educational overview only and not legal advice.
What a partition action does
A partition action asks a Wisconsin circuit court to divide jointly owned property among co-owners. The court will either divide the land physically (partition in kind) or order the property sold and distribute the sale proceeds among owners according to their ownership shares. Partition is the main remedy when co-owners (for example, heirs who inherited the property as tenants in common) cannot agree on use, sale, or buyouts.
Who can bring a partition action in Wisconsin
Any person with a present ownership interest in the land may file. That often includes heirs who own an undivided share after a death. The basic statutory authority for partition actions is in Wisconsin Statutes chapter 842; see Wis. Stat. § 842.01 for the right to bring the action: https://docs.legis.wisconsin.gov/statutes/statutes/842/01. The court must include all persons who have an interest in the property as defendants; see Wis. Stat. § 842.02: https://docs.legis.wisconsin.gov/statutes/statutes/842/02.
Typical step-by-step process
- Confirm ownership and title status. Look at the deed, probate records, and any recorded instruments. Determine whether the property is held as tenants in common, joint tenants, or in some other form. Most inherited interests are tenants in common, which allows partition.
- Try negotiation or buyout first. Courts favor practical solutions. Offer a buyout or agree to sell through a broker. A written offer and a refusal can be helpful evidence if you later go to court.
- Prepare and file a complaint for partition in the circuit court in the county where the land is located. The complaint should describe the property, state each party’s claimed interest, and ask the court to order partition in kind or, if division in kind is impractical, a sale. See Wis. Stat. § 842.01: https://docs.legis.wisconsin.gov/statutes/statutes/842/01.
- Name and serve all parties. Properly identify and serve all recorded owners and any other parties with a legal interest. The court can bind parties who are properly joined. See Wis. Stat. § 842.02: https://docs.legis.wisconsin.gov/statutes/statutes/842/02.
- Court procedures and potential interim relief. After service, the court will set hearings. You can ask for temporary orders to prevent transfers that would frustrate partition. If the court determines a physical division is possible, it may direct a partition in kind.
- If partition in kind is impractical, the court orders sale. The court may appoint commissioners or a commissioner to divide the property or, if division would be unfair or infeasible, order sale and direct how the sale will occur. See Wis. Stat. § 842.04 and § 842.06 for the court’s authority to divide or order a sale: https://docs.legis.wisconsin.gov/statutes/statutes/842/04 and https://docs.legis.wisconsin.gov/statutes/statutes/842/06.
- Payment of liens, costs, and distribution. Sale proceeds pay valid liens (mortgages, tax liens) and court-ordered costs. Remaining proceeds divide among owners according to ownership shares after accounting for costs. Ensure you understand outstanding mortgages and tax obligations before filing.
What the court considers when deciding in-kind division vs. sale
- Whether the property can be fairly divided without material injury to the owners.
- The physical character and value of the land (e.g., acreage that can be split vs. a single-family home).
- Equity between owners and the practicalities of dividing structures, access, utilities, and zoning.
Common issues and practical considerations
- Mortgages and liens: A mortgage stays attached to the property. If the court orders a sale, sale proceeds typically pay mortgage lenders before owners get their shares.
- Costs and timing: Partition can be costly—court costs, attorney fees, appraisal and survey costs, commissioner or referee fees, and sale costs. A contested partition can take many months; contested issues can extend the timeline to a year or longer.
- Buyouts: Sometimes a co-owner will purchase your share at fair market value. That avoids sale costs and preserves the property for remaining owners.
- Defenses and counterclaims: Co-owners may raise claims or defenses (e.g., claims for contribution for improvements). Be prepared for litigation if parties disagree about credits or offsets.
Practical checklist of documents and information to gather
- Recorded deed(s) showing current ownership.
- Death certificate and probate or estate documents that show how the interest passed to you.
- Any wills, trust documents, or beneficiary designations relevant to title.
- Mortgage statements, tax bills, and evidence of liens or judgments affecting the property.
- Recent property survey or plat if available, and recent property tax assessment.
- Contact information for all co-owners and any tenants or people living on the property.
Where to find Wisconsin law and forms
The partition statutes are in Wisconsin Statutes chapter 842. See the chapter index and individual sections here: https://docs.legis.wisconsin.gov/statutes/statutes/842. For specific sections cited above, consult:
- Right to bring action: Wis. Stat. § 842.01 — https://docs.legis.wisconsin.gov/statutes/statutes/842/01
- Joinder of parties: Wis. Stat. § 842.02 — https://docs.legis.wisconsin.gov/statutes/statutes/842/02
- Partition in kind and sale procedures: Wis. Stat. § 842.04 — https://docs.legis.wisconsin.gov/statutes/statutes/842/04
- Orders for sale: Wis. Stat. § 842.06 — https://docs.legis.wisconsin.gov/statutes/statutes/842/06
Hypothetical example
Suppose you inherited a 25% undivided interest in a small farmhouse and two other heirs each own 37.5%. You and the co-owners cannot agree on whether to keep or sell. You first offer to sell your 25% to the other owners; they refuse. You file a partition action in the circuit court where the property sits, name the other co-owners and anyone with a lien, and ask the court to order sale if the court finds the house cannot be fairly divided. After appraisal and court proceedings, the court orders a sale. The mortgage and sale costs are paid first; the remaining proceeds divide by ownership shares—after accounting for any credits the court orders (for example, for unpaid taxes or improvements). This produces a cash distribution you can accept instead of co-ownership.
When to consult an attorney
Consider hiring a lawyer if the case involves contested title, liens, possible offsets for improvements, complicated family dynamics, or if you want to preserve the highest possible sale value. A lawyer can prepare the complaint, ensure proper joinder and service, advocate for or against in-kind division, and protect your share of the proceeds. If cost is a concern, ask about unbundled services or a limited-scope representation.
Disclaimer: This article explains general Wisconsin law and is for informational purposes only. It is not legal advice and does not create an attorney-client relationship. For advice about your specific situation, consult a licensed Wisconsin attorney.
Helpful Hints
- Before filing, get a current title report or do a records search to identify all owners and liens.
- Document any attempts to negotiate a buyout in writing; courts view reasonable attempts to settle favorably.
- Obtain a current appraisal or broker price opinion to support a fair valuation if you wish to sell or seek a buyout.
- If there are tenants or people living on the property, identify their lease rights or occupancy claims early.
- Keep receipts and records for improvements or expenses; the court may award credits or offsets.
- Ask the clerk of the circuit court where the property is located about local filing requirements and fees.
- Consider mediation to avoid costly court proceedings—many counties offer mediation services for property disputes.