How to Force a Partition Sale When You Co-Own Real Property in Montana

This FAQ-style guide explains how a co-owner can force a partition sale of real property in Montana. It assumes a simple hypothetical: two adult siblings each own a 50% interest in their late father’s house as tenants in common, and one sibling wants to sell while the other refuses. This is general information only and not legal advice.

Detailed answer: Steps to force a partition sale under Montana law

1) Confirm how title is held. The remedy depends on whether the property is owned as joint tenants with right of survivorship or as tenants in common. If the deed created a joint tenancy with right of survivorship, the surviving joint tenant(s) generally own the whole property automatically and there is no co-ownership to partition. If the deed (or the probate distribution) created tenancy in common, each co-owner holds an undivided fractional share and either co-owner can seek partition.

2) Check whether the estate is still in probate. If the house is still subject to the decedent’s probate estate, ownership may not yet be final. If the estate is open, you may need to resolve ownership through the probate court first so that the proper parties are named in any partition action.

3) Attempt negotiation or buyout first. Before filing a lawsuit, try to negotiate a buyout or a mediated settlement. A co-owner can offer to buy the other’s share at fair market value or propose an agreed sale and split the net proceeds. Mediation often saves time and legal fees.

4) File a partition action in district court. If negotiation fails, under Montana law a co-owner can file a civil action asking the district court for partition of the property. The complaint identifies the property, the parties, each party’s interest, and asks the court either (a) to partition the property in kind (divide the land into separate parcels proportionate to ownership), or (b) if in-kind division is impractical, to order a judicial sale and divide the sale proceeds among the owners.

5) Court preference and factors. Courts generally prefer partition in kind when it is practical and fair. The court will consider whether physical division is feasible without prejudice to the owners. If physical division would significantly harm the property’s value or is impracticable, the court typically orders a sale.

6) Appointment of a commissioner and sale process. If the court orders a sale, it usually appoints an officer (often called a commissioner or special master) to sell the property at public auction or through a court-approved private sale. The court supervises notice requirements, bidding rules, and confirmation of the sale. After sale, the commissioner reports proceeds to the court, which subtracts liens, taxes, sale costs, and statutory costs before distributing the net proceeds according to each owner’s share.

7) Liens, mortgages, and taxes. Outstanding mortgages, liens, unpaid property taxes, and other encumbrances attach to the property. A partition sale does not wipe out valid liens. Typically, sale proceeds pay those obligations first, and any remaining funds are distributed to co-owners according to their shares. If a mortgage exists, the lender’s consent or payoff may be necessary to clear title at closing.

8) Possible buyout orders. In some situations the court may give one co-owner the option to buy out others at an appraised fair market value rather than sell the property to a third party. This depends on local practice and the court’s discretion.

9) Timeline and costs. Partition lawsuits usually take months to resolve and can take longer if contested. Expect filing fees, service costs, possible appraisal fees, commissioner’s fees, attorney fees, and court costs. These expenses are typically paid out of sale proceeds or allocated by the court.

10) Where to find the statute and court info. Montana’s statutes governing property and partition-related matters are in the Montana Code Annotated (see Title 70, Property). For statutes and related code, see the Montana Legislature’s code pages: Montana Code Annotated, Title 70 (Property). For court rules and district court contact information, see the Montana Judicial Branch: Montana Courts.

Hypothetical example (illustrative)

Two siblings inherit a house and hold it as tenants in common, 50/50. One sibling wants to sell; the other refuses. The sibling wanting sale files for partition in the local district court. The court finds the house cannot be fairly divided without significantly reducing value, so it orders a sale. The court appoints a commissioner, gives notice, and the property goes to public sale. Mortgage and taxes are paid from the proceeds, sale costs deducted, and the net balance is split 50/50 between the siblings.

Helpful hints

Confirm ownership and review the deed. Look for words like “joint tenants” or “tenants in common.”
Get a current title report and a recent appraisal to establish market value and detect liens.
Gather probate documents (will, letters testamentary, or intestacy findings) if the decedent’s estate is involved.
Try negotiation or mediation first. A negotiated sale or buyout usually saves money and time.
Understand costs and net proceeds. Ask for an estimate of likely fees, liens, and taxes to know what you might actually receive.
Consider timing. Partition litigation can take many months; plan accordingly for mortgage payments, taxes, and insurance during the process.
Talk to a Montana real property attorney. An attorney can file the correct pleadings, arrange appraisals, and represent you at sale confirmation hearings.
If a mortgage exists, contact the lender early. A lender may have requirements or may allow a short-term payoff arrangement for a court-ordered sale.

Disclaimer: This article explains general principles of Montana property law and possible steps to seek a partition sale. It is not legal advice. Laws change and each situation is unique. For legal advice about your specific situation, contact a licensed attorney in Montana.