Detailed Answer
When a family member who co-owns an inherited parcel refuses to list it for sale, New Mexico law provides a court-based remedy called a partition action. This is the usual legal path to force the sale (or division) of jointly owned real property when co-owners cannot agree.
What a partition action does
A partition action asks a New Mexico district court to divide the property among the owners (partition in kind) or, if dividing the land is impractical or unfair, to order the property sold and the net proceeds divided among the owners (partition by sale). The court chooses the method that fairly protects each co-owner’s rights.
Who can file
Any person with an ownership interest in the property (for example, heirs who received title through probate or people named on the deed as tenants in common) can file for partition. Before filing, confirm who holds legal title: check the county clerk/recorder’s office and the probate court record if the property passed through an estate.
Typical steps in New Mexico
- Gather ownership documents: deed, death certificate, probate order (if applicable), mortgages, liens, tax bills, and any agreement among owners.
- Try negotiation and mediation first: courts generally expect co-owners to try to resolve disputes before costly litigation. A demand letter explaining your intent may prompt a sale or buyout.
- If negotiation fails, file a partition complaint in the district court for the county where the property is located. The complaint names all co-owners and asks the court to partition or order sale.
- Court process and notice: defendants (co-owners) must be served. The court may order appraisals, appoint commissioners or a referee to evaluate how the land can be divided or marketed, and set hearings.
- Partition in kind vs sale: if the court finds the property can be fairly divided, it may order a physical division. If division would impair value or be impractical, the court usually orders a public sale or auction and divides net proceeds after liens and costs.
- Distribution: proceeds are used to pay mortgages, liens, taxes, and sale costs; the remainder is distributed among owners by ownership share (after accounting for advances, improvements, or prior agreements). The court issues a judgment directing the distribution.
Practical outcomes and alternatives
Even when a partition action is available, alternatives may be faster and cheaper:
- Buyout: One co-owner pays market value to the other to obtain full title (usually based on appraisal).
- Agreed sale: Owners agree on a real estate agent and list the property; split net proceeds per ownership shares.
- Mediation: A neutral mediator can often generate a deal co-owners accept, avoiding litigation costs.
Costs, timeline, and risks
Partition litigation can take many months to over a year depending on complexity, title issues, liens, and court schedules. Expect filing fees, service costs, appraisal fees, possible realtor/commission costs if the court orders a sale, and attorney fees. If you win, the costs and sale expenses are typically paid from sale proceeds before distribution, but legal fees can reduce each owner’s share.
Common complications
- Title clouded by unresolved probate, joint tenancy vs tenants-in-common issues, or unclear deeds.
- Mortgages and liens that must be paid or addressed before distribution.
- Disagreements about improvements, payments made by one co-owner, or who has spent money on the property—these may affect the distribution or lead to claims for reimbursement.
- Claims that the property is exempt (homestead protections) or subject to family farm rules in certain circumstances.
Where to read the law and get forms
New Mexico statutes and court resources are available online. For statute texts and to search for partition-related provisions, see the New Mexico Legislature’s statutes search: https://www.nmlegis.gov/laws-statutes. The New Mexico Courts website has general guidance about civil actions and locating the correct district court: https://www.nmcourts.gov. For case-specific statutory citations and procedure, a licensed New Mexico attorney can point to the exact statutory sections and local court rules that apply.
Helpful Hints
- Confirm ownership first: check the county clerk/recorder and any probate records. You must name the proper owners in the court complaint.
- Collect documentation: title/deeds, probate orders, death certificates, mortgage and tax records, and any written family agreements about the property.
- Get a current appraisal before filing: it sets expectations for buyout offers and the potential sale price if the court orders a sale.
- Try a formal demand and mediation before suing: a short demand letter from an attorney can prompt negotiation or a buyout and saves time and fees.
- Consider a buyout formula in writing: an appraiser’s value minus the buyer’s share of closing costs can be a starting point that prevents litigation.
- Be prepared to pay upfront costs: filing fees, appraisals, and attorney retainers are usually required before the clerk or court will move forward.
- Account for liens: mortgage lenders or other lienholders may have priority over proceeds; resolve these early if possible.
- Expect distribution adjustments: if one co-owner paid taxes or made improvements, bring records so the court can credit those amounts appropriately.
- Ask about alternatives: if the property has sentimental value or is hard to sell (rural parcels, fractional interests), a negotiated solution may preserve family relationships and value better than litigation.
- Hire local counsel: a New Mexico real property attorney can file the complaint correctly, calculate shares and credits, and represent your interests through sale or division.
Disclaimer: This article explains general New Mexico legal concepts but is not legal advice. It does not create an attorney-client relationship. For advice about your specific situation and to identify the exact statutes and procedures that apply, consult a licensed New Mexico attorney.