How to split inherited property when a co-owner won’t cooperate: Steps to file a partition action in South Dakota

Quick overview: If you inherited property with one or more co-owners who refuse to cooperate, you may be able to ask the South Dakota circuit court to force a partition. This guide explains the typical steps, what to expect, and practical tips to prepare. This is educational information only and not legal advice.

Detailed answer — Step-by-step guide under South Dakota law

1. Confirm how title is held

Before filing, determine how the decedent’s interest passed and how title is held now:

If property passed by a will or intestacy, the decedent’s interest may be in the estate or already transferred to heirs via probate.
If title lists the owners as joint tenants with right of survivorship, the surviving cotenants may automatically own the property and partition may be treated differently.
If owners are tenants in common, each owner holds an undivided fractional interest and either owner can seek partition.

Do a title search at the county Register of Deeds to confirm current recorded ownership, liens, mortgages, and any recorded survivorship provisions.

2. Try to resolve the dispute before suing

Court-ordered partitions are time-consuming and costly. Start with these nonlitigation steps:

Send a written demand asking for voluntary sale or buyout of your interest and propose valuation methods.
Offer mediation or neutral appraisal to set a fair market value.
Consider negotiating a buyout where one owner buys the other’s share.

3. Prepare to file a partition action in circuit court

If negotiations fail, the next step is filing a partition action in the South Dakota circuit court where the property is located. Partition actions and procedures are governed by South Dakota statutes dealing with partition of property (see South Dakota Codified Laws on partition).

4. What goes in the petition (complaint)

The petition should generally include:

Identification of the filing party (plaintiff) and all defendants (co-owners and other interested parties, e.g., mortgage holders).
Legal description of the property (use deed/legal description from county records).
Allegation that the plaintiff and defendants are co-owners and that partition is necessary because one or more co-owners refuse to agree.
Requested relief — partition in kind (physical division) or partition by sale; request appointment of a commissioner or special master if needed; request accounting for rents, mortgage payments, taxes, and improvements.
Prayers for costs, fees, and any temporary relief (e.g., appointment of a receiver to protect the property or to collect rents).

5. Serve all interested parties and lienholders

After filing, you must properly serve the petition on all co-owners and any party with an interest in the property (mortgagees, judgment lienholders, heirs, possible unknown owners). If some parties cannot be located, the court may allow service by publication under South Dakota procedure.

6. Court process: discovery, appraisal, and possible settlement

Expect discovery (document requests, depositions) and one or more appraisals. The court often encourages or orders mediation. Many partition cases settle after appraisal or during discovery when parties better understand equity and costs.

7. Court may order partition in kind or sale

The court will choose the solution it finds most equitable:

Partition in kind — physical division when feasible (typically for large parcels that can be fairly divided).
Partition by sale — public sale of the whole property with proceeds split by ownership shares, after paying liens, costs, and reimbursement for improvements or debts.

The court may appoint a commissioner to divide or sell the property and to handle proceeds. The commissioner’s report and sale must comply with court directions.

8. Accounting, credits, and distribution

The court handles accounting for mortgage payments, property taxes, insurance, necessary repairs, rents collected, and contributions. A co-owner who paid more than their share for upkeep may seek credit. Liens and mortgages are generally paid from sale proceeds or handled according to priority.

9. Timeline and costs

Time: a straightforward partition may take several months; contested or complex matters can take a year or more. Costs: filing fees, process service, attorney fees, appraiser fees, commissioner fees, and costs of sale. The court often orders costs paid from sale proceeds or apportioned among owners.

10. Post-judgment: transferring title

After the court approves a sale and distributes proceeds, the purchaser receives clear title subject to recorded exceptions the court orders removed. If the court orders a division in kind, deeds are prepared to convey the divided lots to respective owners.

Relevant South Dakota statutory authority

Partition actions in South Dakota are governed by the state’s statutes on partition of real property. See the South Dakota Codified Laws on partition for statutory procedures, including requirements for petitions, service, commissioners, sale, and distribution. For specifics, consult the South Dakota Codified Laws on partition: https://sdlegislature.gov/Statutes/Codified_Laws/21-29-1 (and following sections).

Note: partition claims may intersect with estate and probate law if ownership flows from a recently opened estate. For probate and estate procedure, see the South Dakota statutes on probate and administration (e.g., the South Dakota Codified Laws governing estates).

When to hire an attorney

Consider hiring an attorney if any of the following apply:

Co-owners are uncooperative or unlocated;
There are unresolved liens, mortgages, or title defects;
The property is difficult to divide practically (homes on a single lot, small parcels);
Significant tax, inheritance, or accounting questions arise;
You need help with court procedure, service, or obtaining a receiver/commissioner.

Helpful Hints

Collect documents early: deed(s), death certificate, will (if any), probate documents, mortgage statements, tax bills, insurance policies, and records of improvements or rent.
Run a full title search at the county Register of Deeds to identify all recorded interests before filing.
Get a professional appraisal before filing to support valuation and settlement discussions.
Consider mediation or neutral valuation first — it often saves time and money.
Keep good records of any payments you make toward mortgage, taxes, insurance, and repairs — the court may award credits.
If co-owners live out of state or are hard to locate, be prepared for service-by-publication steps and added delay.
Understand tax consequences of a sale or buyout (capital gains, basis adjustments) — consult a tax advisor.
Expect the court to protect secured creditors (mortgages) — liens typically survive partition until satisfied.
Ask the court for temporary relief if the property is at risk (e.g., someone threatening to waste or remove fixtures).
Check local forms and filing requirements on the circuit court’s website or contact the clerk for procedural questions.

Final note / Disclaimer: This article explains common steps under South Dakota law but is general information only. It is not legal advice and does not create an attorney-client relationship. For advice about your specific situation and to protect your rights, consult a licensed South Dakota attorney experienced in real property and partition actions.