Detailed Answer
What a partition action is
A partition action is a court proceeding that lets co-owners of real property force a division of the property or a sale and distribution of the proceeds when the owners cannot agree. Courts prefer a physical division of land (“partition in kind”) when it can be done fairly and without materially harming the property. If dividing the land is impractical or would reduce the value, the court can order a sale and then divide the sale proceeds among the owners according to their ownership shares.
Who may bring a partition action in South Dakota
Any person who holds an ownership interest in real property — typically tenants in common or joint owners — may file for partition. That includes deeded co-owners and, in many cases, holders of equitable interests. If someone else has a lien or encumbrance (like a mortgage), that interest usually remains and will affect how proceeds are distributed.
Where to start
File a civil complaint for partition in the circuit court of the county where the property is located. The complaint should identify all co-owners and interested parties, describe the property, state each party’s claimed interest, and ask the court to order partition in kind or sale. The court process follows South Dakota civil procedure and local court rules.
Typical court process and outcomes
– After the complaint is filed and served, the court will determine who has an interest in the property and whether a fair division is possible. The court may appoint commissioners or referees to physically divide the property, to make a report, and to supervise the sale if ordered.
– If the court orders a sale, it will direct how the sale is conducted and how the net proceeds are distributed. Liens, mortgages, taxes, and prior judgments are usually paid from sale proceeds before owners divide the balance according to their ownership percentages.
– The court can also order an accounting for rents, profits, and expenses if the property has produced income or incurred costs while the dispute exists.
Costs, fees, and possible recoveries
The court may assess costs of the partition (appraisers, commissioners, sale costs) against the property or divide them among the owners. In some circumstances the court may award attorney fees, but that depends on statute or equitable grounds and is decided case by case.
Key South Dakota resources
– South Dakota Codified Laws and statute search: https://sdlegislature.gov/Statutes/Index.aspx
– Use the legislature’s statute search to look up relevant provisions (search terms such as “partition,” “real property,” or “partition sale”): https://sdlegislature.gov/Statutes/Results?search=partition
– South Dakota Unified Judicial System (court information and local rules): https://ujs.sd.gov/
Step-by-step checklist to start a partition action
- Confirm ownership and interests: Gather deeds, title report, mortgage statements, leases, and any written agreements among owners.
- Try voluntary resolution first: Offer buyouts, mediation, or a written agreement to sell. Courts view attempts to resolve disputes favorably and mediation can save time and costs.
- Decide the relief you want: Partition in kind (division) or partition by sale. Your complaint can request either or both, leaving the final decision to the court.
- Prepare and file a complaint: Draft a civil complaint with property description, parties, claimed ownership shares, and specific requests (division, sale, appointment of commissioners, accounting, and costs). File in the circuit court where the property sits and pay required filing fees or request fee relief if eligible.
- Serve all interested parties: Serve the complaint and summons on all co-owners and known lienholders per South Dakota service rules. Proper service is required before the court can act.
- Attend hearings and follow court orders: The court may set scheduling conferences, appoint commissioners or referees, order appraisals, and set a trial or status hearings. Comply with discovery and evidentiary rules.
- Implement the court’s decision: If the court orders division, follow the commissioners’ report and deed transfers. If the court orders a sale, follow the sale procedure and distribution of net proceeds, paying liens and costs first.
Practical issues and tips
- Physical division may be impossible for small or irregular parcels. A sale is common in those cases.
- Mortgages and tax liens survive a partition; lenders typically must be paid from sale proceeds.
- Improvements, upkeep costs, and rents collected can affect each owner’s final share. Ask the court for an accounting if necessary.
- Minority owners can still force a partition, but courts balance fairness. A forced sale may yield lower net value than a negotiated sale.
- Consider professional appraisals before filing so the court has current market value data.
When to consult an attorney
Consider hiring a lawyer if any of the following apply: competing ownership claims, complex title history, mortgages or lien priorities, potential environmental issues, commercial property, a likely contested valuation, or if large sums are at stake. A lawyer can draft the complaint, manage service, handle contested discovery, and argue for the most favorable remedy.
If you hire counsel, bring these documents to your first meeting: deed(s), title report, tax bills, mortgage statements, any written agreements among owners, correspondence about attempts to sell or divide, and records of rents or expenses related to the property.
Helpful Hints
- Start by requesting a title history or owner’s policy to confirm interests clearly.
- Offer a documented buyout with proof of ability to pay; many disputes settle once a fair offer appears.
- Use mediation or neutral appraisal before filing; courts often view good-faith settlement attempts positively.
- Keep detailed records of payments, improvements, and time spent managing the property — the court may consider these in an accounting.
- Expect costs for appraisals, advertising (if a sale is ordered), and possible commissioner fees; weigh these against potential recovery.
- Remember that a forced sale can reduce net value. Selling cooperatively often yields a better financial outcome for all owners.