How to file a partition action in Montana to force sale of a parents’ house or obtain a sibling buyout

Short answer: Under Montana law you can ask the district court in the county where the property sits to partition real property owned jointly (usually tenants in common). The court can divide the property physically when practicable or order a sale and split the proceeds. Alternatively, the court can allow one co‑owner to buy out the others’ shares at a fair value. The process starts with a complaint for partition, service on all co‑owners and interested parties, and proceeds through appointment of a commissioner or referee, valuation, and a sale or allotment. This is a court action handled in Montana district court; timelines, costs, and results vary by case.

Is a partition action available to me?

You generally can file for partition when two or more people hold ownership interests in the same real property and cannot agree on use or disposition. Typical scenarios where partition applies:

• Parents hold title jointly with multiple children and one child wants to sell or be bought out.
• Co‑owners inherited property as tenants in common and disagree about keeping the house.

Key ownership distinctions:

• If title is as tenants in common, each owner has an undivided fractional share and can seek partition.
• If title is as joint tenants with right of survivorship, the joint tenancy survives until one dies; after a decedent’s death, survivors typically hold the property and partition may not apply unless the joint tenancy was severed.

Where to file

File the partition complaint in the Montana District Court in the county where the property is located. See the Montana Judicial Branch for district court information: https://courts.mt.gov/courts/district. For Montana statutory law and code titles, consult the Montana Code Annotated at: https://leg.mt.gov/bills/mca/.

Step‑by‑step: Typical partition action process in Montana

1. Gather documents and confirm ownership. Assemble the deed(s), title report or abstract, mortgage statements, tax bills, any wills or trust documents, and written communications about the property.
2. Identify parties with an interest. Include all record owners, anyone with a lien (mortgage, judgment), tenants, and possible heirs or devisees who may claim ownership.
3. Prepare and file a complaint for partition. The complaint states the ownership shares, asks the court to partition the land (in kind or by sale), and requests appointment of a commissioner/referee to oversee valuation and sale if needed. File in the county where the property is located. The clerk assigns a case number and judge.
4. Serve the complaint. Legally serve all co‑owners and interested parties. If someone cannot be located, the court may allow service by publication.
5. Initial responses and possible temporary orders. Co‑owners can answer, assert counterclaims (for example claiming a different interest), or ask the court for temporary relief (e.g., to prevent waste or prevent sale). The court may issue temporary injunctions or orders to protect the property.
6. Valuation and investigation. The court may order an appraisal or appoint a neutral commissioner/referee to evaluate the property, recommend whether partition in kind is feasible, and report a fair market value.
7. Partition in kind vs partition by sale.
   • Partition in kind: The court divides the property physically if it can be done fairly without undue injury to value (for example splitting acreage).
   • Partition by sale: If in‑kind division is impracticable or inequitable (common with single houses on one lot), the court orders sale and divides proceeds among owners after paying debts and court costs.
8. Buyout option (one co‑owner keeps property). A co‑owner may offer to buy out other owners’ shares. The court can approve a buyout by arranging an appraisal and setting the buyout price. If one co‑owner prefers to keep the property and can pay the other owners their shares, the court may order a price or allow the parties to agree on one.
9. Sale and distribution. If the court orders sale, it supervises sale terms (often through a commissioner), confirms the sale, pays liens and costs from sale proceeds, and distributes the remainder according to ownership shares.
10. Final judgment and recording. The court enters a final decree of partition. If sale occurs, the purchaser receives title; if allotment occurs, deeds are adjusted. Record any new deed with the county recorder.

Practical considerations and common questions

How long does it take?

Cases vary. Simple uncontested buyouts can resolve in a few months. Contested partition actions with valuation disputes or title issues often take 6–18 months or longer.

How much does it cost?

Costs include court filing fees, service fees, appraisal costs, commissioner or referee fees, possible escrow or real estate broker fees on sale, and attorney fees if you hire counsel. The court often allocates costs between parties or deducts them from sale proceeds.

Can the court force my sibling to buy me out?

The court will not force a co‑owner to personally come up with cash to buy you out unless the co‑owner chooses to buy. However, the court can order sale and split proceeds so you receive money. If you prefer a buyout, propose a buyout amount supported by appraisal; the sibling can accept, arrange financing, or decline. The court can approve a buyout based on valuation but cannot compel private borrowing.

What if the property has a mortgage?

A mortgage stays attached to the real estate. The buyer at a court‑ordered sale usually takes subject to the mortgage unless the buyer pays it off as part of closing. The court will typically pay mortgage liens from sale proceeds before distributing net proceeds to owners.

What if my parents are still alive and on title?

If your parents are alive and they hold title, they remain co‑owners with the authority to convey or to join in a partition action. If they are incapacitated or protected by a trust or power of attorney, additional legal considerations (conservatorship, trustees’ duties) arise.

Are there alternatives to filing a partition action?

• Negotiate a voluntary buyout or sale among owners.
• Mediation to reach a settlement about sale, rent, or buy‑out terms.
• Refinance: co‑owner who wants to keep the property refinances to cash out others.
• Quiet title or probate actions if title or inheritance issues complicate ownership.

Evidence and documents to prepare before you file

• Recorded deed(s) and title history.
• Mortgage, tax bills, homeowner association documents.
• Any written agreements about ownership, prior sales offers, or conversations.
• Photos showing condition of the property, rental history if applicable, and repairs needed.
• Names and contact info for all possible interested parties and lienholders.

Relevant Montana resources

• Montana Code Annotated (searchable): https://leg.mt.gov/bills/mca/
• Montana District Courts (filing, local rules, clerks): https://courts.mt.gov/courts/district
• Montana self‑help information and forms (courts site): https://courts.mt.gov/selfhelp

Helpful hints

• Confirm the exact names and how they appear on the recorded deed before filing.
• Get a current appraisal or broker price opinion early so you understand market value and settlement leverage.
• Try mediation early — it often saves time and money compared with contested litigation.
• If you want a buyout, prepare a realistic written offer and a proposed timeline for payment or financing contingencies.
• Keep careful records of all payments, improvements, property taxes, and communications about the property and ownership shares.
• If the property has tenants, consult rules about eviction, leases and tenant rights before changing occupancy or listing for sale.
• Consider potential tax consequences (capital gains, basis adjustments) and consult a tax advisor before finalizing a sale or buyout.
• Talk to a Montana real property attorney for tailored advice about strategy, likely outcomes, and local practice — courts follow local rules and judges may handle partition matters differently by county.

Disclaimer: This article provides general information about Montana law and is not legal advice. It does not create an attorney‑client relationship. For advice about your particular situation, consult a licensed Montana attorney familiar with partition actions and real property matters.