Detailed Answer
This section explains, in plain language, how to force a sale of real property you co-own in Kansas when a co-owner (for example, a sister) will not agree to a voluntary sale. This is an overview of a partition action under Kansas law and what you can expect. This is educational only and not legal advice.
What a partition action does
A partition action is a lawsuit asking the district court to divide or sell real property owned by two or more people. If the court finds the property cannot be fairly divided in kind (for example, a single-family house on one lot), it will order a sale of the property and divide the proceeds among owners according to their ownership shares.
Where to file
File a partition petition in the Kansas District Court for the county where the property is located. The district court has authority to hear partition claims and to appoint a commissioner to handle a sale if necessary.
Who to name as parties
Name every known co-owner (your sister and any other record owners). Also name anyone who holds a recorded interest in the property (mortgagees, judgment lienholders, or anyone with a recorded easement). If some owners or claimants are unknown, the court can allow service by publication to bring them into the case.
What to include in the petition
Your petition should state clearly:
- That you and the others are co-owners of the described real property (use the legal description shown on the deed).
- Each party’s claimed ownership share (for example, 50% and 50%, or as shown in the deed).
- The reason you seek partition (co-owner refuses to agree to sale; property cannot be practically divided).
- A request that the court order partition in kind or, if that is impracticable, order a sale and direct how proceeds should be distributed after paying liens, taxes, and costs.
- Any request for a temporary order to preserve the property (e.g., an order requiring payment of insurance/taxes, or enjoining waste or removal of personal property).
Supporting documents to gather
- Deeds and chain of title showing ownership.
- Mortgage statements and lien records.
- Property tax bills and evidence of who paid taxes and insurance.
- Receipts for repairs or improvements you or the other owner paid for that you want the court to consider in an accounting.
- Any written communications about offers to buy, attempts to negotiate a buyout, or agreements (if any).
Service of process and notice
After you file, you must serve the petition and summons on each co-owner and any known lienholder in the manner required by Kansas rules. If a person’s whereabouts are unknown, you can ask the court to allow service by publication (newspaper) or other alternative service permitted by Kansas law.
Temporary relief you can ask for
When you start the case, you can also ask the court for temporary orders to protect the property’s value, such as:
- An order requiring payment of mortgage, taxes, and insurance.
- An order preventing removal of fixtures or waste of the property.
- An order to allow a co-owner to occupy the property but pay rent to the other owners, or an order for a rental accounting.
What the court can do
The court will determine whether partition in kind (physical division) is practicable and fair. For most single-family houses on a single lot, dividing the land fairly is impractical, and the court will order a sale. The court commonly appoints a commissioner or referee to handle the sale. The court will then confirm the sale, deduct costs and valid liens (mortgage, tax liens, etc.), and distribute net proceeds according to ownership shares.
Liens, mortgages, and priorities
Recorded liens (mortgages, tax liens, judgment liens) normally survive the partition and must be paid from sale proceeds in the order of priority. If you are behind on mortgage payments, the lender may have the right to foreclose or otherwise protect its interest. The buyer at the court-ordered sale will generally take the property subject to certain superior liens unless the sale process clears them.
Costs, attorney fees, and possible credits
Costs of the action and the costs of sale are typically paid from the sale proceeds before distributions. Each party usually pays their own attorney fees unless a statute or agreement allows recovery of fees, or the court orders otherwise. The court may also account for contributions by one co-owner for repairs, taxes, or mortgage payments and adjust distributions accordingly.
Timeline and what to expect
Timelines vary. A straightforward partition that does not require publication or contested hearings may take several months. If service by publication, contested hearings, bankruptcy filings, lien disputes, or appeals arise, the case can take a year or longer. Expect hearings, possible mediation, a court-appointed commissioner to market the property and conduct a sale, and a final confirmation hearing.
Common defenses and complications
Common issues that can delay or complicate a partition:
- Co-owner claims an equitable interest different from the record title.
- Bankruptcy filings by a co-owner that could temporarily stay the case.
- Homestead claims or other statutory protections asserted by an occupant.
- Disputes over liens, priority, or payments made by a co-owner.
Alternatives to filing
Before filing, consider these alternatives:
- Negotiate a buyout: offer to buy your sister’s share or let her buy yours.
- Mediation: a mediator can often resolve valuation or payment disagreements faster and cheaper than litigation.
- Refinance or assume mortgage to allow one party to pay off the other.
How to start if you decide to proceed
- Collect deeds, title information, mortgage and lien statements, tax bills, and billing/payment records.
- Try one last time to negotiate a voluntary sale or buyout and document offers in writing.
- If negotiation fails, prepare and file a verified petition for partition in the district court where the property sits.
- Arrange proper service on all parties and lienholders. If necessary, ask the court for permission to serve by publication.
- Attend hearings, respond to discovery, and be prepared to present accounting and evidence of contributions to the property.
For statutory text and rules governing civil procedure in Kansas, see the Kansas statutes and district court resources from the Kansas Revisor of Statutes and the Kansas Judicial Branch:
- Kansas Statutes (Revisor of Statutes) — search for partition-related statutes and civil procedure rules.
- Kansas Judicial Branch — court forms, local rules, and filing information for district court.
If you plan to represent yourself, study the district court rules for the county where the property sits. If the case raises complicated title, lien, tax, or bankruptcy issues, consult an attorney experienced in real estate litigation and partition cases.
Disclaimer: This article explains general principles of Kansas law and common steps in a partition action. It is educational only and does not constitute legal advice. For advice specific to your situation, consult a licensed Kansas attorney.
Helpful Hints
- Gather the property deed and any title insurance policy before filing. The legal description is essential.
- Document any payments you’ve made for taxes, mortgage, repairs, or improvements — the court may credit you for these.
- Try mediation first. It is cheaper and faster than court and often preserves relationships.
- Check for recorded liens: payoffs reduce the net you’ll receive at sale.
- Be realistic about timing and costs. Partition litigation can take months and will include court, commissioner, and sale costs.
- If your co-owner is living on the property, clarify whether the court will require rent or an accounting; ask for temporary orders if needed to protect value.
- If you need a lawyer, use the Kansas Bar Association lawyer referral service at ksbar.org or contact your local county bar for referrals.
- If a co-owner files bankruptcy, the partition may be stayed. Notify a bankruptcy attorney promptly if that occurs.