How to File a Partition Action in Massachusetts to Split Inherited Property

FAQ — Partition Actions for Inherited Property under Massachusetts Law

When you and one or more co-owners inherit real property and a co-owner refuses to agree to sell or divide it, Massachusetts law gives a way to force a division or sale through a partition action. The explanation below walks a layperson step‑by‑step through the typical process, what the court can order, and practical considerations before you file.

Detailed answer — how a partition action works in Massachusetts and the steps to take

Under Massachusetts law, any person who owns an interest in real estate with others may ask a court to partition the property. The primary statutory source is M.G.L. c. 240 (the partition statute), which recognizes the right to seek a judicial partition. See M.G.L. c. 240, § 1: malegislature.gov/Laws/GeneralLaws/PartI/TitleIII/Chapter240/Section1.

1. Confirm ownership and your legal interest. Start by obtaining the deed(s), the will or probate documents that transferred the property, and any recorded title documents. Determine whether the co‑owners hold title as tenants in common (most common with inherited property) or as joint tenants. Partition rights differ in detail, but both forms generally allow a partition action.
2. Try to resolve the dispute without court. Courts expect co‑owners to try negotiation, mediation, or a buyout. Prepare a clear written proposal: offer to buy the other owner’s share at a stated price, propose an agreed division in kind, or suggest selling and splitting proceeds. Document your attempts to negotiate—courts will view settlement efforts favorably.
3. Consider a formal demand letter. If informal talks fail, send a certified demand letter requesting partition or offering a buyout. This creates a paper trail and may be required by your attorney before filing suit.
4. Decide the proper court and prepare the complaint. File the partition action in the appropriate court in the county where the property lies. For most unregistered land, the Superior Court handles partition actions; for Land Court‑registered properties, file in the Massachusetts Land Court. The Land Court website: mass.gov — Land Court. Your complaint should state who owns the property, describe the property, list all owners and known lienholders, allege inability to agree, and ask the court to order partition (in kind or by sale) and appoint commissioners or a master to divide/sell the property.
5. Serve all parties and interested lienholders. After filing, you must personally serve (or otherwise validly serve) all co‑owners and known mortgagees or lienholders. Proper service is essential for the court to acquire jurisdiction over the parties and to bind property interests in the process.
6. Temporary orders and possession. If you face hostile occupation, waste, or risk to the property, ask the court for interim relief—appointment of a receiver, injunctions, or temporary possession orders—while the case proceeds. This protects the property’s value and addresses duties like paying taxes, insurance, and maintenance.
7. Discovery and valuation. Parties typically exchange information (title documents, valuations, appraisals). The court may order one or more appraisals to determine whether the parcel can be partitioned in kind without substantial prejudice to owners.
8. Partition in kind vs. partition by sale. The court’s first consideration is whether a fair division in kind (physically splitting the land) is practicable without unfairly harming owners. If a fair division is feasible, the court may order division and appoint commissioners to mark boundaries and allocate parcels to each owner. If division would be impractical or would reduce value substantially, the court will order a sale (public auction or supervised sale) and divide net proceeds among owners according to their shares. These remedies and the court’s authority derive from M.G.L. c. 240 and the court’s equitable powers. See M.G.L. c. 240, § 1: malegislature.gov/Laws/GeneralLaws/PartI/TitleIII/Chapter240/Section1.
9. Commissioners, sale, and distribution. If the court orders sale, it will appoint a commissioner or referee to oversee the sale, pay off valid liens and mortgages from sale proceeds, pay sale costs and taxes, and distribute the remainder to owners by their ownership shares. If the court orders division in kind, commissioners prepare plans and deeds transferring newly formed parcels to individual owners and address adjustments (credits/demands) to make the division equitable.
10. Address liens, mortgages, and contributions. Mortgages and recorded liens ordinarily attach to the property and must be paid at sale. The court’s final accounting will allocate responsibility for debts, costs, and credits (for improvements or payments made by specific owners). Be prepared to present proof of payments, receipts, and any agreements for reimbursement.
11. Final decree and recording. The court issues a final decree confirming the partition (division or sale). Record any commission deeds or court orders in the registry of deeds to clear title and conclude the process.

Typical timeline varies: simple agreed partitions can resolve in months; contested cases often take a year or more depending on discovery, appraisals, motions, and whether an appeal follows.

Hypothetical example (simple facts to illustrate)

Three siblings inherit vacation land in Middlesex County as tenants in common after their parent’s probate closes. One sibling refuses to sell or let the others use the property. The two siblings who want relief send a demand letter and offer to buy the holdout’s share. After no response, they file a partition complaint in Superior Court, name the holdout and the mortgagee, ask for temporary appointment of a receiver to collect rent and pay taxes, request appraisals, and ask the court to order a sale. The court orders a sale, appoints a commissioner, the property sells at public auction, liens are paid, and the net proceeds are divided two ways: each owner receives their share according to ownership percentages after costs.

Where to file (Land Court vs. Superior Court)

If the property is registered in the Land Court system (certificate of title issued by Land Court), file in the Land Court. For most other properties, file in the Superior Court in the county where the property is located. If you are unsure whether the property is Land Court registered, review the deed record or consult the registry of deeds or an attorney.

Practical issues and strategic considerations

• Title search and probate: confirm that probate has fully transferred title before filing.
• Costs: litigation, appraisal, and commissioner fees can be substantial; compare likely costs vs. buyout amount.
• Occupancy and income: consider asking for rent or an accounting if a co‑owner occupies the property exclusively.
• Tax consequences: sale proceeds and buyouts may trigger tax events; consult a tax advisor.
• Timing and family dynamics: partition actions are adversarial; weigh whether a negotiated settlement is better for relationships.

Helpful hints

• Document everything: keep copies of deeds, probate orders, correspondence, and records of maintenance or payments.
• Try mediation first: courts often encourage mediation and it can save time and money.
• Get a current appraisal early to set realistic settlement expectations.
• Ask your attorney about temporary relief if the property is being damaged or if a co‑owner refuses access.
• List all lienholders and creditors; failing to name them in the complaint can complicate or delay distribution.
• If you own a minority share, understand that courts do not automatically favor minority owners; outcomes depend on practicality of division and fairness.
• Consider the registry of deeds: any court decree or commissioner’s deed must be recorded to perfect new title interests.

Finding counsel and next steps

Because partition actions combine real estate, probate, and civil procedure issues, consider consulting a Massachusetts real estate litigator or probate attorney early. An attorney can confirm the correct forum, prepare pleadings, handle service and discovery, and work to preserve the property’s value while the case proceeds.

Disclaimer: This article explains general Massachusetts law and common practice regarding partition actions. It is educational only and does not constitute legal advice. For advice about a specific situation, consult a licensed Massachusetts attorney.