Detailed Answer
Tenancy in Common and Possession Rights
Under Montana law, heirs who inherit real property become tenants in common. Montana Code Annotated (MCA) § 70-22-102 defines tenants in common as co-owners with undivided interests. Each co-owner has the right to possess and use the entire property, regardless of individual share size. No single heir can legally exclude another from access.
Partition Actions
If co-owners cannot agree on occupancy or sale, any tenant in common may file a partition action under MCA § 70-29-1101. A court may order:
- Partition in Kind: Physical division of the land if feasible.
- Partition by Sale: Sale of the property with proceeds distributed according to ownership shares.
See MCA § 70-29-1101: leg.mt.gov/bills/mca/70/29/70-29-1101.htm.
Occupancy and Accounting for Use
Montana follows common law regarding co-tenant occupancy. A co-tenant in exclusive possession generally does not owe rent to non-resident co-tenants absent an ouster or written agreement. Ouster occurs if the occupant denies the other heir reasonable access. In that event, the ousted heir may claim the fair rental value from the date of ouster.
When the property generates third-party rental income, co-tenants must share net profits proportionally to their ownership interests.
Buyout Negotiations
Co-owners may negotiate a buyout to avoid partition litigation. Steps include:
- Obtain a professional appraisal to determine fair market value.
- Calculate each heir’s share based on ownership percentages.
- Draft a buyout agreement detailing price, payment schedule, and transfer of title.
Practical Steps for Co-Owners
- Review the will or deed to confirm ownership percentages.
- Discuss options in a family meeting or mediation to reach consensus.
- Consult a Montana real estate attorney to explain partition rights and procedures.
- Keep accurate records of all contributions to mortgage, taxes, and home improvements.
- Document any occupancy agreements in writing and have all heirs sign them.
- File a partition action only after other resolution attempts fail to minimize cost and delay.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney in Montana to address your specific circumstances.
Helpful Hints
- Track each heir’s financial contributions (e.g., repairs, utilities).
- Maintain open communication to prevent misunderstandings.
- Consider temporary occupancy agreements with rent credits to keep peace while negotiating.
- Check Montana’s rules on property taxes and estate taxes when determining buyout figures.
- Use certified mail when serving formal partition notices.
- Explore title insurance options to protect against unknown heirs or liens.