What happens if mediation fails and I need to file a partition action to force the sale of our jointly owned land?

Short answer: If mediation fails in New Mexico, a co-owner can ask a New Mexico district court to force a partition of the property. The court will decide whether the land can be divided (“partition in kind”) or whether it should be sold and the proceeds divided (“partition by sale”). The process starts with a complaint, includes notice to all owners and lienholders, may involve a court-appointed commissioner or appraiser, and ends with a court order dividing ownership or directing a sale and distribution of proceeds.

Detailed answer — How a partition action works in New Mexico

Partition is an equitable remedy that lets one or more co-owners (tenants in common, joint tenants, or other co-owners) ask the court to divide property when they cannot agree. In New Mexico, partition actions proceed in district court as civil matters. For statutory background and the text governing partition procedures, consult New Mexico law on partition (see NMSA chapter on partition via the New Mexico Legislature: https://www.nmlegis.gov/) and the New Mexico courts site for local practice guidance: https://www.nmcourts.gov/.

1. Who can file and where

Any person with an ownership interest in the land (for example, a tenant in common) may file a partition complaint in the district court where the property is located. The complaint names all co-owners and any recorded lienholders or interested parties so the court can resolve everyone’s rights in the same case.

2. What the complaint asks the court to do

The complaint will ask the court either to:

order a partition in kind — physically divide the property among owners if division is practical and equitable, or
order a partition by sale — sell the property and divide the net proceeds among the owners according to their ownership shares.

3. Service, response, and early procedural steps

After filing, you must serve all owners and known lienholders. Those parties may file answers asserting defenses or counterclaims (for example, disputing ownership shares or claiming the property should not be partitioned). The court may set scheduling orders, direct discovery (exchanging documents), and schedule hearings.

4. Court-appointed fact-finder — surveyors, appraisers, or commissioners

If the property cannot be divided cleanly, the court may appoint an expert (often called a commissioner or appraiser) to survey the land, prepare a report and recommend whether in-kind division is feasible or whether a sale is more appropriate. The court relies on those reports and on evidence at hearing before deciding.

5. Partition in kind vs. partition by sale

Partition in kind is preferred when the court can divide the land into fairly equivalent parcels without substantially harming value. But if physical division would be impractical, inequitable, or would destroy the value, the court will usually order a sale. In a sale, the court supervises the process, pays off liens and costs from the sale proceeds, and distributes the net balance according to ownership share or specific court orders.

6. Liens, mortgages, taxes, and costs

Before distributing proceeds, the court will pay secured debts (mortgages, tax liens) and sale-related costs (advertising, commissioner or trustee fees, court costs). If one co-owner holds a lien or has made improvements, the court can account for those claims before dividing the remainder.

7. Rents, profits, and possession during litigation

While the case is pending, the court can address who has possession and whether any co-owner must account to the others for rents or profits. If one co-owner has been using the property exclusively (for example, collecting rent), the court may order an accounting so proceeds are fairly distributed.

8. Timing and likely duration

Partition litigation can take many months or more than a year depending on case complexity, need for surveys/appraisals, contested issues, and court schedules. Sales supervised by the court require additional time for advertising, bidding, and closing. Be prepared for a multi-step process.

9. Costs and attorney’s fees

Litigation costs (attorneys’ fees, appraisers, surveyors, court costs) typically come out of the sale proceeds or otherwise get apportioned among parties. In some cases the court can order one party to pay costs if dictated by statute or equitable considerations, but that is not guaranteed. Discuss fee exposure with a lawyer before filing.

10. Possible outcomes

Property divided in kind — each owner receives a separate parcel.
Property sold — net proceeds distributed by ownership share after paying liens and costs.
Buyout — one owner purchases others’ interests at court-determined value.
Settlement — parties can still settle at any time (e.g., one owner buys out the others) to avoid sale or further litigation.

11. Hypothetical example

Three siblings own 90 acres as tenants in common and disagree over use. Mediation fails. One sibling files a partition complaint in district court. The court appoints a surveyor who finds the land cannot be divided into reasonably equal parcels without harming market value. The court orders a partition by sale, directs a court-supervised auction, and after paying a mortgage, taxes, and sale costs, distributes the remaining proceeds in thirds.

Relevant New Mexico law and where to look

Partition actions fall under New Mexico statutory and equitable law. For the governing statutes and official text, search the New Mexico statutes and legislative site (https://www.nmlegis.gov/) for “partition” or “NMSA 1978.” For court practice, forms, and local procedures, see the New Mexico courts website: https://www.nmcourts.gov/. If you need specific statutory citations or local rules, an attorney or the district court clerk can point you to the exact provisions that apply to your county.

Helpful Hints

Try settlement first: Courts favor settlement. A negotiated buyout is usually faster and cheaper than a court-ordered sale.
Gather documents early: deeds, title searches, mortgage statements, tax bills, leases, and evidence of improvements will speed the case.
Get an appraisal and survey: These support valuation and show whether in-kind partition is feasible.
Consider temporary orders: Ask the court for interim orders about possession, maintenance, or who pays taxes while the case proceeds.
Watch deadlines: File in the district court where the land sits and serve all interested parties promptly to avoid delays or default outcomes.
Expect costs: Plan for court fees, appraiser/surveyor fees, and attorney fees; these typically come out of sale proceeds or are apportioned by the court.
Talk to a lawyer: A lawyer with New Mexico property litigation experience can explain likely outcomes, local practice, and cost estimates before you file.

Disclaimer: This article is educational only and is not legal advice. It does not create an attorney-client relationship. For advice about a specific situation in New Mexico, consult a licensed New Mexico attorney.