Disclaimer: This is general information and not legal advice. For advice about your specific situation, consult a licensed Michigan attorney.
Detailed Answer
When two or more people own real estate together and one co-owner wants the property sold, Michigan law permits a court-ordered partition sale. A partition action asks the circuit court where the property sits to divide the property among owners or, if physical division is impractical, to order a sale and split the proceeds. See Michigan’s partition statute: MCL 600.2801.
Key first questions to answer
- How is title held now? (Joint tenancy with right of survivorship, tenancy in common, or still in your father’s name awaiting probate.)
- Is there an active mortgage, tax lien, or other encumbrance on the property?
- Have you and your sibling tried negotiating a buyout or voluntary sale?
Ownership after a death
If title already transferred at your father’s death (for example, he put the property into a trust or name survivorship), you and your sibling may be co-owners and able to seek partition. If the deed remained solely in your father’s name, the property may still be part of his probate estate. You generally cannot force partition until the estate has transferred any ownership interest the decedent held. For probate questions, consider a probate attorney.
Typical steps to force a partition sale in Michigan
- Confirm title and interests. Get a current title report or view the county register of deeds records. Confirm whether the property is in both names as tenants in common or if a survivorship interest changed ownership at death.
- Try to resolve it outside court. Courts prefer parties try negotiation first. Options include one owner buying out the other (using an appraisal or agreed value), listing the house and splitting proceeds, or using mediation to set terms.
- Send a written demand. Before filing, a written demand that you intend to seek partition can sometimes prompt a settlement.
- File a partition complaint in circuit court. If negotiation fails, file a complaint for partition in the circuit court where the property is located. The complaint names all owners and any parties with recorded interests (mortgagees, lienholders). The complaint requests either physical division (partition in kind) or sale and distribution of proceeds.
- Court process and possible outcomes. The court will consider whether a partition in kind is practical. If physical division is not feasible without prejudice, the court may order a public sale and appoint a referee or commissioner to handle the sale. The partition statute governs the action: MCL 600.2801. The court will also determine how to pay liens, costs and distribute net proceeds according to each owner’s legal share.
- Sale, distribution, and liens. A sale is typically by public auction or other court-approved method. Proceeds first pay costs of sale, property taxes, mortgages, and court-ordered expenses. Remaining funds divide according to ownership shares.
- Final judgment and transfer. After sale and account, the court enters a final order directing distribution of funds and clearing title as appropriate.
Practical considerations and complications
- If the property is still in your father’s name and part of probate, partition may have to wait until the estate transfers title or until the personal representative joins the case.
- Mortgages and tax liens typically survive transfer; lenders may accelerate a loan upon sale or foreclosure risk if payments stop. Confirm mortgage status before filing.
- If one co-owner is missing or cannot be located, the court may allow service by publication and can still proceed with the partition action.
- Appraisals are important. Courts often rely on independent appraisals when ordering a sale or deciding whether partition in kind is feasible.
- Costs: expect court filing fees, possible costs for a commissioner or referee, appraisal fees, and attorney fees (attorney fees are not always awarded to the winning party).
- Tax consequences: sale of inherited property can create capital gains tax issues. Talk to a tax professional.
When to get a lawyer
Hire an attorney if any of the following apply: title is unclear, the estate is in probate, there are substantial liens or mortgages, co-owners strongly disagree, one owner is absent, or the property has unique value making an in-kind partition desirable. An attorney will prepare the complaint, handle service on all necessary parties, represent you in court hearings, and protect your financial interest.
Helpful Hints
- Start by ordering a current title report and a copy of the deed from the county register of deeds.
- Get a professional appraisal so you and your sibling have an objective value to work from before litigating.
- Document all attempts to negotiate. Courts look favorably on parties who tried to resolve matters without litigation.
- Consider mediation — it is faster and cheaper than a full partition lawsuit and often preserves family relationships.
- Check mortgage payment status. Missing payments can trigger lender action that complicates a partition sale.
- If the property is in probate, contact the probate court clerk or a probate attorney to understand whether the estate must transfer title first.
- Use the State Bar of Michigan’s lawyer referral resources to find a local attorney: https://www.michbar.org.
Remember: this is general information and not legal advice. For help applying these rules to your situation, consult a Michigan attorney who handles real property and probate matters.