Detailed Answer

What is a partition action?

A partition action is a lawsuit filed by one or more co-owners of real property asking the court to divide the property or sell it and divide the proceeds. In Arkansas, any co-owner with a present ownership interest may ask the court to partition the property when co-ownership becomes impractical or when co-owners cannot agree on possession, use, or disposition.

Who can file in Arkansas?

Any person who owns an undivided interest in the property (tenant in common or sometimes joint tenants, depending on facts) may file a partition action in the circuit court for the county where the property sits. If the property belonged to parents and title passed to children, each child who holds a present ownership interest can be a plaintiff.

Which court and legal authority applies?

Partition actions are civil matters handled in Arkansas circuit courts. The procedural rules and statutory framework for property and civil procedure apply. For the Arkansas Code and official provisions related to ownership and property actions, consult the Arkansas Code on the state legislature website: https://www.arkleg.state.ar.us/ (search for “partition” or “real property”).

Basic steps in the partition process

1. Confirm ownership and interest. Gather the deed(s), wills, probate records, trust documents, title insurance policies, mortgage statements, and any documents showing how title is held (e.g., tenants in common vs. joint tenants).
2. Try to settle first. Court filings are expensive and slow. Send a clear written proposal to co-owners offering a buyout amount, a proposal to sell and split proceeds, or mediation. Courts often encourage or require attempts to resolve disputes before litigation escalates.
3. Hire an attorney (recommended). A lawyer experienced in Arkansas real property and civil procedure will prepare pleadings, serve parties, and handle court hearings. If you cannot afford private counsel, consider contacting local legal aid or a bar referral program.
4. Prepare and file the complaint for partition. The complaint identifies the property, lists all co-owners and any lienholders, explains your ownership interest, and requests partition in kind (division) or partition by sale. Include a verified list of parties and their respective interests, if known.
5. Service of process and notice. All co-owners and known lienholders must be served with the complaint. The court will require proof of service. If some parties are unknown or cannot be located, the court allows alternate notice methods (publication) under Arkansas rules.
6. Pre-trial and potential appointment of a commissioner. If the case proceeds, the court may order inspections, appraisals, and may appoint a commissioner (or master) to make recommendations on division/sale, supervise a partition-in-kind, or manage a sale.
7. Partition-in-kind vs. partition by sale.
   • Partition in kind: The court divides the land into physically separate parcels if practicable and fair. This is often favored when equal, usable parcels are possible.
   • Partition by sale: If the property cannot be fairly divided (for example, a single-family house on one lot), the court orders a sale and divides the net proceeds among the owners by their shares.
8. Buyout option. Instead of sale, a co-owner can offer to buy another co-owner’s share. The court may approve a buyout if it is fair and the court has the authority to order a buyout or set terms (for example, ordering an appraisal and letting the non-buying co-owner accept or reject a court-determined price). Offer documentation of financing if you seek to buy out a sibling.
9. Sale process and distribution. If the court orders sale, it may appoint a commissioner or sheriff to conduct the sale (public auction or private sale), apply sale costs, pay mortgage and lien obligations from the proceeds, and distribute the remainder by ownership shares.
10. Final judgment and deed. After sale or division, the court issues a final judgment and a commissioner conveys legal title or the court enters orders distributing proceeds. The judgment resolves co-ownership and clears title accordingly.

How does the court decide whether to divide or sell?

The court examines whether the land can be divided fairly without serious prejudice to any party. If physical division would impair value or convenience, or if the property is a single unit that cannot be divided (a house on one parcel), the court often orders sale. Arkansas courts weigh practicality, fairness, and each owner’s interest.

How are shares and expenses calculated?

Shares usually follow ownership percentage shown in title. The court accounts for mortgage payments, taxes, repairs, rents collected or owed, and improvements. A co-owner who paid more than their share for mortgage, taxes, or repairs may seek credit against proceeds. Document all expenses, receipts, lease payments, and improvements to support claims.

What about liens, mortgages, and creditors?

Known mortgages and liens generally must be paid from sale proceeds before owners receive their share. The complaint should identify all mortgages and lienholders so the court can notify them. A mortgagee may have the right to protect its interest in the sale proceeds.

What if some heirs are missing or unwilling to participate?

If a co-owner cannot be located, the court may permit service by publication and still proceed. If someone refuses to cooperate, the court can still order a sale and distribute proceeds to participating owners or hold a share in escrow for the missing owner until claimed.

Typical timeline and costs

Timelines vary. Simple cases with agreement may resolve in a few months. Contested partition actions can take a year or more. Costs include filing fees, service costs, appraiser and commission fees, title searches, attorney fees, and sale expenses. Expect appraisal and commission fees if the court appoints a commissioner.

Practical strategies before filing

• Obtain a current title report and property tax history.
• Get a professional appraisal to support valuation or buyout offers.
• Offer a written buyout with a deadline and proof of funds or financing.
• Consider mediation to split proceeds or reach a buyout without litigating.

Where to find the controlling law

Arkansas statutes and court rules apply to civil partitions and sales. For the official Arkansas Code and to identify specific statutory language that may govern partition and related procedures, consult the Arkansas Legislature and Arkansas Code website: https://www.arkleg.state.ar.us/ and search “partition” or “real property.” Your attorney can point to the precise sections that apply to your facts.

When to hire an attorney

Hire an attorney if parties disagree, if title is complex, if liens or mortgages exist, or if large sums are at stake. An attorney prepares pleadings, negotiates settlements, ensures proper notice to all owners and lienholders, and protects your financial interests at sale or buyout.

Disclaimer: This article is informational only and does not create an attorney-client relationship. This is not legal advice. Consult a licensed Arkansas attorney about your specific situation.

Helpful Hints

• Document ownership: get the deed, probate records, or trust documents before taking any step.
• Get an appraisal: a current, court-grade appraisal strengthens buyout offers or valuation requests to the court.
• Try mediation first: a mediated buyout or agreed sale saves time and legal costs.
• Preserve evidence of payments: keep records for mortgage, taxes, utilities, or repairs you paid on the house.
• Notify lienholders: identify and list mortgages, tax liens, and other encumbrances early.
• Prepare for costs: filing fees, appraisals, and commissioner fees will reduce net proceeds.
• Consider tax consequences: selling or transferring property can create tax obligations — consult a tax professional.
• Be realistic about occupancy: if you live in the house and want to buy others out, prepare proof of income and financing.
• Keep communications in writing to create a record of offers and refusals.