How Does the Court Conduct a Sale of Property in a Partition Case?

Full question:

I am an owner of one-third of irrigated agricultural land in Nebraska, which three of us inherited in equal amounts. One sibling who has plenty of cash wants to purchase the property, but doesn't want to pay a fair market value for the land and will not agree to a public auction, or make an offer. I am being pressured by my brother, and my own attorney to quickly participate in a private auction between the three siblings, . I would need time to get a loan in order to make an offer. Since land values flucutate widely and are on the rise, it is difficult to obtain an an accurate appraised value. If my brother files a petition for partition, will the court accept an offer on one appraised value? What if two parties are interested in buying it? If it is sold by court order, will it be properly advertised then auctioned in order to reach a fair value? Should I get another lawyer, since I am not feeling very comfortable with mine right now.

• Category: Real Property
• Subcategory: Partition
• Date: 04/07/2025
• State: Nebraska

Answer:

Yes, when there is a public auction, each local area has notice procedures to be followed. You may inquire at the local sheriff’s office for applicable rules. Generally, the court has a duty to accept a “reasonable” offer, and appraised value is evidence regarding whether the offer is reasonable or not. However, other evidence may be presented, such as other appraisals with varying values to dispute the appraisal. We are prohibited from giving legal advice, as this service provides information of a general legal nature. We suggest you contact a local attorney who can review all the facts and documents involved for a second opinion if you lack confidence in your present attorney.

Please see the following from http://www.aoausa.com/Articles/2009/April/2-%20PARTITION%20OF%20PROPERTy.pdf:

"Partition by division, sometimes referred to as “partition in kind,” is favored since it does not compel a person to sell property against his will or disturb an existing form of inheritance. In general, forced sales are strongly disfavored in California and the burden of proof to compel a conveyance rests with the party endeavoring to force a sale. If the Court is able to partition the property by physical division, it will do so, rather than order its sale.

There are two types of evidence which typically justify a partition by sale rather than by division. The first is evidence that the property is so situated that a division into sub-parcels of equal value cannot be made. (Usually that is the case with an apartment building. There is no practical way to physically sever a tenement.) In order to meet this test, the party desiring a partition sale must show that the land cannot be divided equally.

The second type of evidence which supports a partition sale rather than division in kind is economic evidence to the effect that, due to the particular situation of the land, the division of the land would substantially diminish the value of each party’s interest. (Attorneys reading this article may telephone me for a further discussion of the preference of partition by sale and the leading 1982 Court of Appeal decision setting forth the parameters.)

A middle ground between partition by division and partition by outright sale is partition by appraisal. This latter method empowers one party, upon court approval, to purchase the other party’s interest at its market value.

Concluding Remarks
An action for partition of real property is generally a remedy of last resort. It is almost always allowed by the court and, since judgment of one form or another is virtually assured, the parties should do their best to negotiate their own settlement without filing a partition action.

One non-judicial method often used for resolution is a procedure whereby the co-owners each appoint an appraiser to value the property. Through a variety of techniques, the appraisals may be averaged or weighted so as to determine a fair value. Co-owners may then have the right to buy out any other co-owner based on the appraised value, or else have the property placed on the market for sale at that value."

Please see the following NE statutes:

25-2186. Sale of property; report of referee.

After completing said sale, the referee or referees must report their proceedings to the court, with a description of the different parcels of land sold to each purchaser, and the price bid therefor, which report shall be filed with the clerk.

25-21,100. Partition in kind; how made.

When partition is deemed proper the referee or referees must make out the shares by visible monuments, and may employ a competent surveyor and the necessary assistants to aid them.