Filing a Partition Lawsuit in Georgia — Step-by-Step Guide

Detailed answer — who, when, and how

Who can start a partition case?

Any person who owns a present legal or equitable interest in real property may file a partition action in Georgia. That usually includes tenants in common and, in many cases, joint tenants (though joint tenancy and right-of-survivorship can affect issues after a co-owner dies). If someone claims an ownership interest (for example, by deed, contract, or court order), that person should be named as a party.

Which court hears a partition case?

Partition actions are filed in the Superior Court of the county where the real property is located. Partition rules are set out in Georgia law governing property and partition actions; see O.C.G.A. Title 44 (search Title 44, Chapter 6 for partition provisions): Georgia General Assembly – Title 44, Chapter 6 (Partition).

Pre-filing steps to consider

• Check the title: run a title search to identify all record owners and recorded liens (mortgages, tax liens, judgments).
• Try negotiation: courts prefer that parties try to agree on division or a buyout first. A written demand for partition and an accounting of rents, expenses, and contributions can help.
• Gather documents: deed(s) with legal description, tax bills, mortgage statements, leases, and proof of payments or improvements.
• Consider effects of liens and mortgages: liens generally remain attached to the property and will be paid from sale proceeds before owners share net proceeds.

Filing the complaint — what goes in the lawsuit

A typical partition complaint includes:

1. Identification of the property by full legal description and county.
2. Names and addresses of all persons with asserted ownership or recorded interests (co-owners, mortgagees, judgment lienholders, tenants, etc.).
3. A statement of each partys claimed share or interest in the property.
4. A demand that the court order partition in kind or, if thats impracticable, order a sale and distribution of proceeds.
5. A request for appointment of a commissioner or master to divide or sell the property, for an accounting of rents and expenses, and for a determination of lien priorities if needed.
6. Copies (or attached exhibits) of deeds, leases, and other relevant documents when available.

Service, response, and early court steps

After filing, the plaintiff must properly serve each defendant (co-owner, lienholder, etc.) with the complaint and summons. Defendants generally have a limited time to answer or assert counterclaims. The court will set hearings, may appoint appraisers, and can temporarily protect the property (for example, by limiting transfers) while the case proceeds.

Partition in kind vs. partition by sale

Georgia law prefers physical division (partition in kind) when it is feasible and fair. If the court finds a fair and practical division possible, it will divide the property among the owners according to their shares. If physical division would be impractical or would substantially reduce value, the court will order a sale. The court may:

• appoint commissioners or a special master to make the physical division, or
• order a public auction or a private sale under court supervision and then distribute net proceeds after paying costs, mortgages, and liens.

Appraisers, commissioners, and sale mechanics

The court commonly appoints appraisers to value the property and a commissioner to handle division or sale. The commissioner follows court instructions for division or sale supervision. If the property is sold, sale costs, taxes, and lien payments are paid first; remaining funds are distributed to co-owners in proportion to their legal interests.

Accounting, credits, and disputes about contributions

Parties can seek an accounting for rents, profits, taxes, insurance, and necessary repairs. A co-owner who paid more than their share for mortgages, taxes, or repairs may claim credit before proceeds are divided. The court decides equitable adjustments.

Timing, costs, and outcomes

Partition actions vary in length from a few months to over a year depending on complexity, title issues, liens, and appeals. Costs include filing fees, appraisal fees, commissioner or master fees, sale expenses, and attorney fees. Georgia generally does not automatically award attorney fees to the winning party unless a contract or statute allows it or the court finds other equitable grounds.

Common complications

• Unrecorded claims of interest or disputes over ownership shares.
• Existing mortgages or tax liens that must be paid from sale proceeds.
• Leases with tenants; leases may survive a sale and purchasers may step into the lessors position.
• Boundary disputes or claims of adverse possession.
• Requests for attorneys fees — may require separate factual or contractual support.

After the court order

Once the court approves a division or sale, the commissioner conveys title as ordered and the court signs final distribution orders. If parties disagree with the courts decision, they may have the right to appeal under Georgia appellate rules.

Statutory reference: Partition procedures are covered under Georgia statutes addressing property and partition (see O.C.G.A. Title 44 — Property; search Chapter 6 on the Georgia General Assembly website for the relevant partition provisions): O.C.G.A. Title 44, Chapter 6 (partition provisions).

Helpful Hints

• Get a title report early. Knowing recorded mortgages and liens helps you decide whether to pursue partition and how proceeds will be distributed.
• Collect and preserve evidence of payments, improvements, and contributions to the propertys upkeep; these support credits in the final accounting.
• Try to negotiate first. A buyout or agreed sale can save time and fees.
• Consider temporary relief if the property faces imminent sale, foreclosure, or waste; courts can issue limited protections while the case is pending.
• If tenants occupy the property, document lease terms and rent paid; a buyer at court-ordered sale usually takes property subject to valid leases.
• Remember tax consequences: sale proceeds may trigger capital gains or other tax liabilities for each co-owner; consult a tax professional.
• Because partition cases can involve complex title and equitable issues, consider consulting an attorney experienced in Georgia real property litigation before filing.