Starting a Partition Action in Alabama When a Co-Owner Refuses

Detailed Answer

If you own real property in Alabama jointly with another person and that co-owner refuses to agree to sell or divide the property, you can ask a court to force a partition. A partition action asks the court either to physically divide the property among the owners (partition in kind) or to order a sale and divide the proceeds (partition by sale) when division is impracticable.

Below are the typical steps under Alabama law and what to expect at each stage. This overview assumes you start from zero legal background.

1. Confirm ownership and determine the proper court

Check the deed, title report, tax records, and any recorded agreements to confirm legal ownership and each owner’s share. If ownership is unclear, get a title search or abstract.
File the partition action in the circuit court of the county where the subject real property is located. Partition actions in Alabama are generally handled as equity actions in the circuit court. For the statutory rules governing partition, see the Alabama Code, Title 35, Chapter 10 (Partition): Ala. Code §35-10-1 et seq..

2. Try to resolve the dispute amicably first

Before filing, send a clear written demand to the co-owner(s) describing your ownership interest and proposing a reasonable solution (sale, buyout, or division). Keep a copy and proof of delivery.
Mediation or a neutral settlement conference can save time and cost. Courts often encourage (and sometimes require) parties to mediate.

3. Prepare and file the complaint for partition

The complaint identifies the property, lists all known owners and lienholders (mortgages, judgment liens, etc.), states your requested relief (partition in kind or sale), and asks the court to appoint a commissioner or master to carry out the partition if necessary.
Include copies of the deed(s), title documents, and any relevant agreements or encumbrances as exhibits.

4. Service of process on co-owners and lienholders

After filing, you must properly serve the complaint and summons on all defendants (co-owners and recorded lienholders) according to the Alabama Rules of Civil Procedure. If a defendant cannot be located, the court may permit service by publication under appropriate rules.
Refer to the Alabama Rules of Civil Procedure for specifics on service and timing: Alabama Court Rules & Procedures.

5. Interim relief and protecting the property

You may ask the court for temporary orders—such as injunctive relief—to prevent waste, removal of fixtures, changes to the property, or to obtain possession pending final resolution. The court can also appoint a receiver if needed to preserve income or manage rental property.

6. Court process: discovery, hearing, and evidence

Expect discovery (document requests, depositions) if the parties dispute material facts such as boundaries, ownership shares, or liens.
The court will hold a hearing. Evidence should prove who owns what share, the nature of encumbrances, and whether the property can be partitioned in kind without prejudice to owners.

7. Court options: partition in kind vs. partition by sale

Partition in kind: the court will order a physical division if it is practicable without substantial injury to owners’ interests.
Partition by sale: if physical division is impractical or would significantly reduce value, the court can order a sale and distribute net proceeds according to ownership shares after paying liens, costs, and any court-ordered expenses.
The court often appoints a commissioner, master, or auctioneer to manage a sale or supervise the division. See the Alabama partition statutes for statutory procedures: Ala. Code §35-10-1 et seq..

8. Handling liens, mortgages, and creditors

Recorded mortgages and other liens generally attach to the property and must be satisfied or paid out of sale proceeds before owners get distribution. Identify all lienholders in the complaint so they receive notice and can protect their rights.

9. Final decree and distribution

After sale or division, the court enters a final decree that conveys titles or orders distribution of proceeds. The decree also resolves how costs, commissions, and debts are subtracted before dividing the remainder among co-owners according to their legal shares.

10. Possible appeals and post-judgment actions

Either party can appeal an adverse judgment under Alabama appellate procedure timelines. Post-judgment relief (motion to reconsider, enforcement motions) follows standard civil practice.

Helpful Hints

Get a title report early. Knowing liens and the precise vesting language in the deed simplifies strategy and pleading.
Document communications. A clear demand letter and a record of refusals strengthen your position that you tried to resolve matters without court intervention.
Consider valuation first. If a buyout is possible, getting a current appraisal can help you negotiate an equitable buyout rather than a sale forced by court.
Think about costs and timeline. Partition actions can take months to over a year depending on disputes, discovery, and whether the property must be sold.
Protect income-producing property. If tenants or rents are involved, ask the court for temporary management or receivership to avoid loss of value while the case proceeds.
File in the county where the property is located. Circuit court is usually the proper forum for partition claims in Alabama.
Use an attorney familiar with Alabama property and equity practice. Partition actions involve procedural subtleties (service, notice to lienholders, appointment of commissioners) where an experienced lawyer will help avoid delays or missteps.

Quick statutory references: The Alabama partition rules are codified in Title 35, Chapter 10 of the Code of Alabama: Ala. Code §35-10-1 et seq.. For procedural rules governing civil actions (service, pleadings, and process), consult the Alabama Rules of Civil Procedure available through the Alabama Judicial System: judicial.alabama.gov/rules.

Disclaimer

This article explains general steps to bring a partition action under Alabama law and is for educational purposes only. It does not constitute legal advice. For guidance tailored to your situation, contact a licensed Alabama attorney.