Detailed Answer
A partition action is a court process that lets co-owners of real estate force a division or sale of property when they cannot agree. In Kansas, co-owners who hold interests in land (for example, tenants in common or joint tenants) may ask the district court in the county where the property is located to partition the property or order its sale and division of the proceeds. The court will try to divide the land physically (partition in kind) when fair and practical. If physical division is not practical, the court can order the property sold and the net proceeds divided among the owners according to their ownership interests.
Governing law and where to read the statutes
Partition actions are governed by Kansas civil procedure and property law. For the statutes and procedural rules you can review the Kansas legislative statutes and local court rules. See the Kansas Legislature statutes portal for chapters related to civil procedure and property: Kansas Statutes (official). For court forms and procedural guidance, see the Kansas Judicial Branch: kscourts.org.
Who can bring a partition action?
Any person who owns an undivided interest in real property jointly with others can usually bring a partition action. That includes co-owners who hold title as tenants in common or as joint tenants. If title is held by a trust, company, or estate, the trustee or personal representative with authority over the property may be able to start the action. All persons with an ownership interest, and often any lienholders (mortgages), must be identified and served so the court can resolve rights and obligations.
Step-by-step: How to start a partition action in Kansas
- Try to resolve the dispute outside court. Send a clear written demand proposing division, sale, or buyout. Mediation or a neutral appraisal can produce a faster, cheaper result than litigation.
- Collect title and property documents. Obtain the deed(s), title report or abstract, mortgage or lien information, tax records, and any agreements among owners. A current survey helps the court and any appointed commissioner.
- Engage a lawyer experienced in Kansas real property litigation. A lawyer will draft and file the petition (complaint) for partition in the district court of the county where the property is located, prepare required exhibits, and make sure all parties and lienholders are properly named and served.
- Prepare the petition. The petition typically describes the property, each owner’s interest, the nature of the dispute, and the relief requested (partition in kind or sale). It asks the court to appoint a commissioner or referee to oversee division or sale and to determine costs, liens, and distribution.
- File the petition and pay filing fees. After filing, the plaintiff must serve copies on all co-owners and other interested parties (mortgagees, lienholders). The court may require a lis pendens (notice of pending action) to be recorded in the county land records so potential buyers and creditors know about the dispute.
- Court procedures and appointment of a commissioner. The court may order a hearing, appoint a commissioner or special master to evaluate how the property may be divided, and to sell it if necessary. The commissioner typically files a report recommending either a partition in kind or a sale; the court reviews and approves or modifies that recommendation.
- If the court orders a sale. The sale is generally conducted under court supervision—commonly by a court-appointed commissioner or through a sheriff’s sale or public auction. The court then confirms the sale and supervises distribution of proceeds after paying liens, taxes, and the costs of sale (including the commissioner’s and court costs).
- Accounting and distribution. The court will order an accounting for rents, profits, and expenses (for example, mortgage payments, property taxes, repairs). Net proceeds are divided among the owners according to their ownership shares after satisfying liens and expenses.
What the court considers
- Whether a physical division is equitable and practical. The court prefers partition in kind if it does not materially impair the value of the property.
- Improvements, contributions, and expenses. The court may credit an owner who paid mortgage, taxes, or made improvements.
- Existing liens and mortgages. Lenders have rights that normally survive partition; the court deals with mortgage satisfaction or subordination when distributing sale proceeds.
- Possible offsets for rents or use of the property by one co-owner.
Practical timeline and costs
Timeframes vary. Simple uncontested partitions can take a few months; contested or complex cases (title disputes, multiple lienholders, environmental issues) can take a year or more. Court costs, commissioner fees, appraisal and survey expenses, and attorney fees can be significant—often reducing the net recovery after sale. In some cases, the court can award attorney fees to the prevailing party if a statute or contract authorizes it.
Alternatives to filing
- Buyout: one co-owner purchases the others’ interests using an agreed price or appraisal.
- Voluntary sale: co-owners agree to list and sell the property and split proceeds.
- Mediation or neutral appraisal to reach an equitable division or price.
Where to find forms and local rules
Check the Kansas Judicial Branch website for local court forms and procedural guidance: kscourts.org. For statutory text and legislative material consult the Kansas Legislature’s statutes portal: Kansas Statutes.
Helpful Hints
- Start by communicating in writing. A written buyout offer or sale plan can settle disputes quickly and cheaply.
- Get a current title report and survey before filing. These documents reveal liens, easements, and boundary issues that affect partition options.
- Consider mediation early. Courts often encourage settlement and mediation can preserve value and relationships.
- Notify lienholders and record a lis pendens if you file. Failing to include a mortgagee can complicate a court-ordered sale later.
- Budget for costs: surveys, appraisals, commissioner fees, and court costs reduce net proceeds from any sale.
- Keep detailed records of payments and improvements. The court may credit owners who paid taxes, mortgage, or made improvements.
- Ask your attorney about the tax consequences of a sale or division—capital gains and basis allocation matter.
- If you want to keep the property, explore financing options to buy out co-owners rather than forcing a sale.
Disclaimer: This article explains general information about partition actions under Kansas law and is not legal advice. Laws change and every case turns on specific facts. Consult a licensed Kansas attorney to get advice tailored to your situation and to learn the precise statutes and local rules that apply.