Detailed Answer
Short answer: If co-owners of real estate in Colorado cannot agree, any co-owner can ask a Colorado district court to force a partition. The court can either divide the property physically (partition in kind) or order its sale and distribute the proceeds. Before filing, owners should try negotiation or mediation because court actions cost time and money.
What a partition action is and when to use it
A partition action asks the court to end co-ownership of real property when the owners (for example, tenants in common or joint tenants) cannot reach an agreement. The court’s options generally include:
- Partition in kind — dividing the land into distinct portions and giving each owner a portion;
- Sale — ordering a public sale of the whole parcel and distributing the proceeds according to ownership shares.
Partition practice in Colorado is governed by the Colorado Revised Statutes and by Colorado court procedure. For the official statutes, see the Colorado Revised Statutes page: https://leg.colorado.gov/colorado-revised-statutes. For court rules and forms, consult the Colorado Judicial Branch: https://www.courts.state.co.us.
Step-by-step: How to start a partition action in Colorado
- Confirm ownership type and shares. Determine whether owners hold title as tenants in common, joint tenants, or another form. Collect deeds, the current title report, property tax records, and the mortgage or lien documents.
- Try to resolve the dispute first. Send a clear written demand asking for partition, sale, or buyout and propose mediation. Courts prefer when parties attempt settlement. Mediation or a buyout can save money and preserve value.
- Choose the right court and prepare the complaint. If negotiation fails, file a complaint for partition in the district court of the county where the property lies. The complaint typically states each party’s ownership claim, describes the property, lists liens and encumbrances, names all interested parties (owners, mortgage holders, lienholders), and asks the court to partition the property in kind or order a sale and to appoint a commissioner or receiver to conduct the division or sale.
- Serve all necessary parties and liens. Proper service on all owners, mortgagees, and lienholders is required. Unserved parties can later challenge the judgment.
- Court appointment of a commissioner. If the court orders partition, it may appoint a commissioner (sometimes called a referee) or receiver to survey, divide, sell, and distribute. The commissioner files a report with the court describing how the partition or sale was handled.
- Partition in kind vs. sale. Courts favor partition in kind when it is fair and feasible without materially impairing value. If a physical division would be impractical or would decrease value, the court may order a sale. The sale proceeds are used to pay liens, sale expenses, and then distributed according to ownership interests.
- Account for liens, mortgages, and costs. Liens and mortgages typically remain attached to the property until paid. The partition process includes an accounting: costs, commissions, taxes, and lien payments are settled before net proceeds are split among owners.
- Final judgment and title transfer. After the court accepts the commissioner’s report and enters a final judgment, titles transfer according to the judgment (for example, deeds conveying newly divided parcels or distributing sale proceeds). Follow-up filings with the county recorder complete the transfer.
Practical considerations and timeline
Expect several months to over a year depending on complexity, number of parties, liens, and whether a sale is contested. Costs include court filing fees, service fees, commissioner fees, appraisal and survey costs, attorney fees, and sale costs. The losing side (or the estate of the property) often bears some of these costs, but courts have discretion.
Alternatives to a court partition
- Mutual buyout: One owner purchases the others’ shares at an agreed price.
- Partition by agreement (contract): Owners agree to divide or sell privately.
- Mediation or arbitration to resolve dispute without litigation.
When you should hire a lawyer
Hire a Colorado real property litigator if the ownership is contested, there are multiple lienholders, or values and contributions are disputed. A lawyer will prepare pleadings, identify required parties, handle service, protect your share against liens, and advise whether a sale or in-kind partition will be more favorable.
Official resources: Search the Colorado Revised Statutes and court rules at the Colorado General Assembly site: https://leg.colorado.gov/colorado-revised-statutes. For local procedural rules and filing information, check the Colorado Judicial Branch: https://www.courts.state.co.us.
Disclaimer: This article is for general informational purposes only and is not legal advice. Consult a licensed Colorado attorney before taking legal action.
Helpful Hints
- Start by collecting the deed, title report, mortgage, tax bills, and any written agreements about the property.
- Send a clear written demand to co-owners before filing. A documented negotiation effort helps at trial and sometimes avoids litigation.
- Consider mediation. It can resolve disputes faster and cheaper than court.
- Identify and list every possible interested party: all owners named on title plus anyone holding a recorded lien or mortgage.
- Get an up-to-date survey and appraisal. They support requests for partition in kind and help the court measure fairness.
- Be aware of tax consequences. A sale may create capital gains taxable events for co-owners.
- Understand that a court-ordered sale may be a public auction; a private agreed sale often yields a higher price.
- Ask potential attorneys about experience with Colorado partition cases, typical timelines, and all likely costs.
- Keep detailed records of payments for mortgage, taxes, improvements, and maintenance — the court may consider contributions when accounting for net proceeds.
- Act promptly. Delay can increase costs and complicate locating parties or preserving property value.