Disclaimer: This information is for general education and does not constitute legal advice. Consult a qualified attorney for advice tailored to your situation.
Detailed Answer
Under South Dakota law, a co-owner or other interested party can force the sale of real property by filing a partition action in circuit court. The statutes governing partition appear in Chapter 21-37 of the South Dakota Codified Laws. Key steps include:
- File a Complaint: Any co-owner (joint tenant or tenant in common), heir, or lienholder may initiate a partition action by filing a complaint under SDCL 21-37-1. The complaint must describe the property, list all parties with an interest, and specify the relief sought (division or sale).
- Service and Response: Serve the complaint on all co-owners and lienholders. Parties then answer the complaint or assert any claims or defenses.
- Appointment of Commissioners: The court appoints three disinterested commissioners under SDCL 21-37-3. These commissioners survey the property and report back to the court.
- Partition in Kind: If the property can divide fairly without undue prejudice to owners, the court orders a physical division under SDCL 21-37-12.
- Partition by Sale: When a division in kind would result in “great prejudice” or prove impractical, the court must order a sale. See SDCL 21-37-17. The court issues an order directing a public auction.
- Conducting the Sale: A referee or commissioner conducts the public auction pursuant to SDCL 21-37-20. After the sale, net proceeds—after costs and liens—distribute among owners in proportion to their interests.
- Final Decree and Title Transfer: The court confirms the sale, enters a final decree, and directs the clerk to issue a referee’s deed to the purchaser.
This process balances fairness to co-owners with the practical need to convert property into liquid assets when physical division proves inefficient.
Helpful Hints
- Review SDCL 21-37-17 to understand when a forced sale is mandatory.
- Obtain a boundary survey before filing to clarify property lines and minimize disputes.
- Consider mediation to reach an agreement without court-imposed sale expenses.
- Prepare for appraisal, legal fees, and court costs by budgeting accordingly.
- Seek legal counsel early to ensure proper plea, service, and procedural compliance.