Detailed answer — What a partition lawsuit is and how to start one in North Dakota

When co-owners inherit real property and they cannot agree on dividing it, North Dakota law allows one or more co-owners to ask the district court to force a division of the property. This court action is called a partition action. A partition action asks the court either to divide the land physically (partition in kind) or, if dividing fairly is impractical, to sell the property and divide the proceeds (partition by sale).

Important note: This article explains the typical steps and issues under North Dakota law to help you understand the process. It is not legal advice. Speak with a licensed North Dakota attorney about your specific situation.

Step-by-step overview

1. Confirm legal ownership and shares. Start by gathering documents that prove co-ownership and ownership shares: the decedent’s will (if any), probate filings, deeds, affidavits of heirship, title insurance policy, property tax records, and any conveyances. You must know who the legal owners are and how title is held (tenants in common, joint tenants, etc.).
2. Try negotiation and settlement first. Courts often expect co-owners to try resolving the dispute before filing suit. Offer buyouts, propose a voluntary survey and division, or use a mediator. If discussions fail, keep records of your efforts — the court will want to know you attempted to resolve the dispute.
3. Decide whether you want partition in kind or partition by sale. Partition in kind divides the land into separate parcels that match each owner’s share. It can be appropriate for large, divisible tracts. Partition by sale asks the court to sell the entire property (usually at auction) and distribute proceeds. The court will decide which form is fair when owners disagree.
4. Determine the correct court and file the complaint. In North Dakota, partition actions are filed in the district court of the county where the property is located. Prepare and file a complaint (petition) that: identifies the property, lists all co-owners and their addresses, states the ownership interests, explains why partition is necessary, and requests the relief you want (partition in kind or sale). Include a proposed form of judgment and any supporting documents (deed, death certificate, probate order, survey if available).
5. Serve all co-owners and necessary parties. All co-owners and any lienholders or mortgagees must be named as parties and properly served according to North Dakota civil procedure rules. If a co-owner cannot be located, you may need to request service by publication per court rules.
6. Court appointment of commissioners or referees. If the court orders partition in kind, it commonly appoints commissioners or referees to survey and divide the property and to recommend how to allocate parcels. The commissioners prepare a report and proposed division for the court’s approval. The court may order adjustments, award money to equalize uneven values, or allocate specific parcels to specific owners.
7. Partition by sale and sale procedures. If the court orders a sale, the court typically directs how the sale will occur (private sale or public auction), chooses a sale officer (often the sheriff or a commissioner), and requires notice and lien satisfaction. After sale, the court supervises distribution of proceeds after paying liens, costs, and commissions.
8. Accounting, liens, and credits. The final division or distribution will account for mortgages, liens, taxes, necessary repairs, and costs of the partition action. If one owner has paid more than their share of expenses, the court may order credits or reimbursement.
9. Possible appeals and enforcement. Parties unhappy with the court’s decision may appeal under North Dakota appellate procedure. The court’s order is enforceable like other civil judgments.

Who pays the costs?

Costs of the partition (surveys, commission fees, attorney fees, court costs) are normally paid out of sale proceeds or apportioned among the owners by the court. In some circumstances the court may award attorney fees against a party who acted unreasonably, but that is case-specific.

Where to file and procedural references

File your partition complaint in the North Dakota district court for the county where the property is located. For general court information and locations, visit the North Dakota court system: https://www.ndcourts.gov/. To review the North Dakota Century Code and to search for statutes that govern partition and related civil procedure, use the official code search: https://www.legis.nd.gov/cencode.

Example hypothetical to illustrate the process

Hypothetical: Three siblings inherit a 120-acre farm as tenants in common after their parent’s probate. Two siblings want to divide the farm into three parcels, but the third refuses. One sibling files a partition complaint in the county district court where the land sits. The court appoints commissioners who perform a survey. If commissioners find the farm can be divided approximately by value, the court approves in-kind division and orders one sibling to pay a cash equalization payment to account for value differences. If the land cannot be fairly divided, the court orders a sale and divides net proceeds after paying a mortgage and sale costs.

When to hire an attorney

If the property has mortgages or liens, complex title issues, or if co-owners actively resist, hire a North Dakota attorney experienced in real property litigation. An attorney can prepare your complaint, ensure proper service of process, handle discovery, represent you at hearings, and protect your financial interests through valuation and accounting.

Helpful hints

• Gather documents early: deed(s), probate paperwork, death certificate, tax bills, mortgage statements, insurance policies, and any prior surveys.
• Ask for a professional land survey before filing if you think a clean physical division is possible.
• Try mediation or a neutral appraiser to value the property — often cheaper than litigation.
• Notify and include all lienholders; a mortgage must be paid or addressed in the partition process.
• Be realistic about costs: partition litigation can take months to over a year and involve court, survey, and sale expenses.
• If you want the property sold and split, request partition by sale in your complaint; if you seek a specific parcel, request partition in kind and explain why a physical division is fair.
• If a co-owner lives elsewhere or cannot be located, expect extra steps for service of process (possibly publication) and additional delay.
• Keep written records of negotiation efforts. Courts prefer to see you attempted to resolve the issue before seeking court intervention.
• Check local district court clerks’ office for filing fees, required forms, and local rules.
• Use the North Dakota Century Code search to find statutes and procedural rules that apply: https://www.legis.nd.gov/cencode.