Detailed Answer
What a partition action is and when it applies
A partition action is a court proceeding that lets co-owners of real property divide the property or force a sale and divide the sale proceeds. In North Dakota, any co-owner who cannot agree with the other co-owners can ask the district court in the county where the land lies to order partition or a sale. If you inherited an ownership interest in family land and the other owners will not buy you out or agree to a sale, a partition action is the standard path to force division or sale.
Key prerequisites before filing
- You must have a recognizable ownership interest (a deed, a recorded intestate/heir interest, or a title issue resolved by probate). If the ownership arose through probate, have the probate file or the recorded document showing your interest.
- The property must be identifiable and located in North Dakota. The proper court is the district court in the county where the real estate is located.
- All known co-owners and lienholders must be named or otherwise properly served in the lawsuit so the court can bind their interests.
Basic procedural steps
- Prepare the complaint for partition. The complaint should identify the property (by legal description), list all owners and known lienholders, set out your ownership interest and how you acquired it, and state the relief you want (partition in kind or partition by sale).
- File the complaint in district court in the county where the property is located and pay the filing fee (county-specific fees apply).
- Properly serve summons and the complaint on all co-owners and recorded lienholders pursuant to the North Dakota rules for service of process. If some parties are unknown or cannot be located, the court can allow alternative service methods or publication in some circumstances.
- If parties contest facts (ownership, boundaries, liens), the case proceeds like other civil litigation: discovery, motions, and possibly a trial on title or equitable issues. If parties are cooperative or issues are straightforward, the court may move directly to appointing commissioners or a referee to divide or value the property.
- The court typically orders either partition in kind (division of the land into separate parcels) when it is practical without materially impairing value, or partition by sale (public sale and distribution of proceeds) when division is impracticable or would unfairly harm owners.
Commissioners, surveyors, and valuation
If the court orders a partition in kind, the court commonly appoints commissioners or a special master (often including surveyors or real estate appraisers). Those appointees evaluate the property, prepare a proposed division, and report back to the court. Parties may object and the court will resolve disputes.
Partition by sale
If the court orders sale, it will set the sale terms (often public auction). The court supervises the sale and then directs how proceeds will be distributed after costs, liens, taxes, and court-ordered expenses are paid. If one co-owner wants to keep the property, the court may permit a buyout where that owner pays other owners their share based on appraised value.
Costs, liens, and priority
Liens on the property (mortgages, judgment liens, tax liens) normally must be paid from sale proceeds according to priority. Court costs and fees for commissioners, appraisal, advertising, and sale expenses are generally deducted from proceeds before owners are paid. In some circumstances, the court can award attorneys’ fees or costs against a party who acted unreasonably, but that is fact-specific.
Timing and common complications
- Timing varies. Uncontested partitions can resolve in a few months. Disputes over title, boundaries, or liens can prolong the case a year or more.
- Complications include unclear title (missing deeds), multiple generations of heirs, encumbrances, boundary disputes, or minors/unknown heirs. The court may require notice by publication for unknown heirs, which adds time and expense.
Practical tips about strategy
Before filing, consider negotiating with co-owners or using mediation. Many partition cases settle: a sale by agreement, a buyout, or an agreed division. Filing a partition action is a powerful legal tool but carries litigation cost and may sour family relationships. If your interest is small relative to the whole, weigh the expected share of sale proceeds against legal fees and delay.
Where to file and what law governs
File in the North Dakota district court for the county where the land is located. North Dakota statutory and procedural law governs property rights and civil procedure; for court rules and procedures see the North Dakota court rules and North Dakota Century Code resources:
- North Dakota Century Code – general access to statutes: https://www.legis.nd.gov/cencode
- North Dakota court rules and procedures: https://www.ndcourts.gov/legal-resources/rules
- North Dakota Courts — self-help and forms portal (for general information on civil cases): https://www.ndcourts.gov/legal-resources/self-help
When to get an attorney
Hire an attorney if title is unclear, multiple heirs are involved, there are existing liens, or you expect contested litigation. An attorney can prepare pleadings, ensure proper service, handle discovery, preserve your rights, and represent you at hearings. If your case is simple and uncontested, you may be able to proceed without counsel, but speak with a lawyer for a case-specific assessment.
Disclaimer
This information is educational only and is not legal advice. It does not create an attorney-client relationship. For advice about your specific situation, consult a licensed North Dakota attorney.
Helpful Hints
- Collect documents: deed, death certificate, will or probate paperwork, tax statements, mortgage statements, and any recorded liens before filing.
- Identify all possible owners and lienholders by searching the county recorder’s office and probate records. Missing parties can complicate or void a partition.
- Get a recent survey or preliminary title report to clarify boundaries and encumbrances.
- Consider appraisal(s) to know the approximate market value and to evaluate buyout offers.
- Try negotiation or mediation first; settlements often save time, cost, and family relationships.
- If you expect unknown heirs, ask the court about service by publication—this requires strict compliance with court rules and statutory notice periods.
- Keep records of communications and offers; the court may consider post-filing conduct when awarding costs or fees.
- Ask your county clerk or the district court clerk about filing fees and local forms and procedures before filing.