Detailed Answer
This article explains, under Wisconsin law, what typically happens when co-owners cannot agree and a court moves forward with a partition that results in a private sale of one owner’s share by a court‑appointed commissioner. This is a general explanation for educational purposes only and is not legal advice.
1. Why a partition action starts
When two or more people own real property together (tenants in common, for example) and they cannot agree about possession, sale, or division, any co‑owner may start a partition lawsuit. Wisconsin’s partition rules are in Wis. Stat. ch. 840. The court decides whether the property can be divided “in kind” (physically split) or whether it must be sold and the sale proceeds divided.
2. Court decides in kind vs. sale
The judge looks at whether a fair division on the ground is practical. If division in kind would be impractical or would substantially reduce the property’s value, the court will order a sale instead of a physical division. The court can order a public sale or authorize a private sale, and it often appoints a commissioner to handle the sale process under court supervision. (See Wis. Stat. ch. 840: https://docs.legis.wisconsin.gov/statutes/statutes/840.)
3. Appointment and role of the commissioner
When the court orders sale, it usually appoints a commissioner (sometimes called a referee or commissioner of sale). The commissioner’s duties generally include these steps:
- Give required notice to all parties and lienholders.
- Arrange appraisal or valuation activity, if ordered.
- Market the property or solicit offers if authorized to pursue a private sale.
- Accept an offer within the authority granted by the court, or file a report and recommendation with the court asking the judge to approve a particular sale.
- Close the sale only after the court confirms it and issues an order directing distribution of proceeds.
4. Private sale: how it works
If the court authorizes a private sale, the commissioner generally follows the court’s directions on marketing, minimum acceptable price (an upset price), and notice periods. A private sale typically means the property can be sold directly to a buyer without a public auction, but the sale still requires the commissioner to report the terms to the court and the judge to confirm the transaction before the purchaser receives marketable title free of the partition dispute.
5. Notice and opportunity to object
All co‑owners and known lienholders receive notice about the proposed sale and the confirmation hearing. Co‑owners can object to the commissioner’s report or the sale price at the confirmation hearing and present evidence (appraisals, testimony about offers, evidence of improper procedure). The court will consider objections before confirming or rejecting the sale. If the court rejects the sale, the commissioner may solicit other offers or proceed to a public sale.
6. Confirmation, closing, and distribution
If the court approves the sale, the judge will enter an order confirming it and directing the commissioner or clerk to distribute proceeds. The court’s distribution typically pays first the costs of the sale and administration, then mortgages or liens on the property, and finally divides the net proceeds among the owners according to their interests. The court’s confirmation is what clears title to the buyer and authorizes payment.
7. What if you disagree with the process or result?
If you disagree, you can challenge the commissioner’s actions and the proposed sale in the partition proceeding. Common grounds for objection include inadequate notice, failure to follow the court’s directions, sale at an unfairly low price, or conflicts of interest. If the court confirms the sale and you still believe the court erred, you may have appellate remedies under Wisconsin appellate rules, but those remedies have strict time limits and procedural rules.
8. Practical consequences for a co‑owner
Key things to expect as a co‑owner whose share is being sold:
- You must participate in the case and object promptly if you want the court to consider your concerns.
- You may be able to buy out the other owners’ shares before sale by negotiating a price.
- A private sale confirmed by the court typically results in marketable title for the buyer and distribution of net proceeds to owners; you will not remain on title after the confirmed sale.
- Liens and mortgages are paid from the sale proceeds according to priority before co‑owners receive their shares.
9. Court and statute reference
The partition process in Wisconsin is governed by chapter 840 of the Wisconsin Statutes (Partition). For an overview of the statutory framework, see Wis. Stat. ch. 840: https://docs.legis.wisconsin.gov/statutes/statutes/840
Important disclaimer: This explanation is educational only and does not create an attorney‑client relationship. It is not legal advice. If you face a partition action or a court‑appointed sale, consult a Wisconsin attorney promptly to protect your rights and meet deadlines.
Helpful Hints
- Gather documents early: deed, mortgage statements, tax bills, insurance, leases, and recent appraisals or listings.
- Get an independent appraisal or broker price opinion to support objections about a low sale price.
- Attend all hearings and respond to court papers on time. Missing deadlines reduces your options to object or appeal.
- Consider a negotiated buyout: buying or selling your interest privately often gives better value than a forced sale.
- Ask the court for a clear order limiting the commissioner’s authority (minimum price, marketing requirements, length of marketing period) if you worry about a rushed or unfair private sale.
- Look for lien problems early: unresolved liens or unpaid taxes can reduce your net share of sale proceeds.
- Consult an attorney experienced with Wisconsin partition law before the confirmation hearing or before closing any private sale.