How do co-owners initiate a partition action to divide or sell shared real property? (SD) | South Dakota Partition Actions | FastCounsel
Get Matched
SD South Dakota Partition Actions

How do co-owners initiate a partition action to divide or sell shared real property? (SD)

August 8, 2025 6 min read

How co-owners start a partition action in South Dakota

Short answer: A co-owner begins a partition action by filing a civil complaint in the South Dakota circuit court where the property is located, naming all co-owners and known lienholders, asking the court to divide the property in kind or order a sale and distribute proceeds. Before filing, co-owners should gather title documents, identify all parties with an ownership or lien interest, and consider negotiation or buyout alternatives.

Detailed answer — steps to initiate a partition action under South Dakota law

This section explains, in plain language, the typical procedural and practical steps a co-owner should expect when starting a partition action in South Dakota. This is a general roadmap — facts and local practice will affect the exact process.

1. Confirm the type of co-ownership

  • Partition actions typically involve owners who hold as tenants in common. Joint tenancy or tenancy by the entireties may require different handling to sever the joint tenancy before partition.
  • If title paperwork or a deed is unclear, obtain a copy of the recorded deed from the county register of deeds or a recent title report.

2. Identify all interested parties

  • Name every person or entity that holds an ownership interest, including heirs, beneficiaries, or trust beneficiaries if the property sits in a trust.
  • Identify and locate all lienholders (mortgages, tax liens, judgment liens). They must be given notice because they have rights to sale proceeds.

3. Gather documents and facts

  • Recorded deed(s) and any recorded easements or covenants.
  • Mortgage and lien documents.
  • Property tax bills, insurance policies, leases or rental agreements if the property produces income.
  • Records of payments, repairs, or improvements that may affect contribution or accounting among co-owners.

4. Prepare and file the complaint in circuit court

  • File in the South Dakota circuit court for the county where the real property is located. (South Dakota circuit court information: https://ujs.sd.gov/Court_Services/Circuit_Courts.aspx.)
  • The complaint should: identify the property (legal description or tax parcel), list each owner and their claimed share, request partition in kind or, if partition in kind is impracticable, request a sale and division of proceeds, and ask the court to appoint a commissioner or referee to carry out partition or sale.
  • Pay the applicable filing fee and comply with local filing rules. Courts typically require service of process on all named defendants (co-owners and lienholders).

5. Service, response, and preliminary court orders

  • All defendants must be served with the complaint and summons. If parties cannot be located, the court may allow substituted service or service by publication.
  • Defendants may answer and raise defenses (for example, disputing ownership shares or claiming equitable liens for contributions).
  • In some cases, a petitioner can ask the court for temporary relief — for instance, to prevent waste (damaging or removing value) or to stop a co-owner from selling without court permission.

6. Partition in kind versus partition by sale

  • Partition in kind: the court divides the physical property so each owner receives a separate portion. This is preferred where division is practical and equitable.
  • Partition by sale: when division in kind is impracticable (e.g., a single-family home on one lot), the court may order the property sold and the net proceeds distributed among owners according to their shares after paying liens, costs, and any court-ordered adjustments.
  • The court may appoint a commissioner, master, or referee to survey, subdivide, sell, or oversee the sale and distribute proceeds.

7. Accounting, credits, and adjustments

  • The court can order an accounting. The sale proceeds or division may reflect credits for mortgage payments, taxes, insurance, repairs, or improvements made by one co-owner that benefited the property.
  • Liens and mortgages generally attach to the property and are paid from sale proceeds or otherwise resolved before distributing net proceeds to owners.

8. Final judgment and distribution

  • After the court approves the division or sale and the commissioner’s report, the court enters a judgment of partition. That judgment creates final rights and directs distribution of proceeds or deeds to divided parcels.
  • Either party can appeal aspects of the decision within statutory time limits if they believe the court erred.

Where South Dakota law controls the process

South Dakota codified laws and circuit court rules govern procedure for partition actions, notice, and sale. For statutory text and specific procedural requirements, consult the South Dakota Codified Laws and circuit court rules. Search the statutes or look for chapters addressing partition or actions involving title and real property on the South Dakota Legislature website: https://sdlegislature.gov/Statutes.

Common practical issues and how courts typically handle them

  • If co-owners reach a voluntary agreement (division, buyout, or sale to a third party), they can avoid litigation by recording a new deed or a settlement agreement approved by the court.
  • When one owner cannot pay to buy out others, courts often order sale and split proceeds.
  • Creditors with recorded liens typically get paid from sale proceeds in order of priority.
  • Partition cases can be costly; litigation expenses and commissioner fees reduce proceeds available to owners.

Typical timeline and costs

  • A simple uncontested partition that results in a voluntary division may take a few months. Contested matters that require surveys, sale, or appeals can take a year or more.
  • Court costs, service fees, survey costs, commissioner’s fees, and attorney fees all affect net proceeds. Budget for costs when considering whether to litigate or negotiate a settlement.

When to consult an attorney

Consult an attorney if:

  • You cannot identify all co-owners or lienholders.
  • Ownership shares are disputed or title is clouded.
  • There are complex liens, mortgages, or creditor claims.
  • You want to seek an accounting for contributions or payments made by co-owners.

Helpful hints

  • Collect deeds and mortgage papers before filing. A clear title history speeds the process.
  • Try mediation or a buyout first; litigation is expensive and unpredictable.
  • Identify and notify all lienholders early — they can affect whether the court orders sale and how proceeds are distributed.
  • Keep records of payments, repairs, rents, and taxes. The court may credit or charge co-owners based on these records.
  • Expect a commissioner or court-appointed official to inspect the property and recommend division or sale procedures.
  • Search South Dakota statutes or consult the circuit court clerk for local filing requirements: Circuit Court locations and contact information.

Disclaimer: This content is for general informational purposes only and is not legal advice. It does not create an attorney-client relationship. Laws change, and each case depends on its facts. For advice about your particular situation, contact a qualified attorney licensed in South Dakota.

The information on this site is for general informational purposes only, may be outdated, and is not legal advice; do not rely on it without consulting your own attorney.