Detailed answer: How a partition action works in South Carolina
When two or more people own the same real property and they cannot agree on what to do with it, South Carolina law allows a co-owner to ask a court to divide the property or force its sale. This remedy is called a partition action. The primary state law on partition is found at South Carolina Code Title 15, Chapter 41 (see S.C. Code Ann. § 15-41-10 et seq.).
Who can bring a partition action?
Any co-owner of the property may file for partition. That includes tenants in common. If the property is owned jointly with right of survivorship, the surviving joint tenant usually owns the whole property and a partition action is not available. If your father died owning the house, whether you can proceed depends on how title passed on death:
- If the house is in your father’s sole name and probate is not complete, the estate (through the personal representative) typically must be involved or probate completed so title issues are resolved.
- If title shows your father and others as tenants in common, a co-owner (including an heir who inherited an interest) can seek partition.
- If title passed to you and others by deed, will, or intestacy, and you are co-owners, a partition action is available.
Where to file
File a partition complaint in the South Carolina Circuit Court for the county where the property is located. The Circuit Court (Court of Common Pleas division) handles equitable actions like partition.
Basic steps to file a partition action
- Confirm ownership and title. Obtain a certified copy of the deed, the county property records, and, if applicable, probate paperwork showing how title stands after your father’s death.
- Identify all interested parties. The complaint must name and serve all co-owners and anyone with a recorded interest in the property (mortgagees, lienholders, heirs, devisees, and the personal representative of an estate, if any).
- Prepare and file a complaint for partition. The complaint explains who owns the property, the nature and size of each owner’s interest, and asks the court to either (a) divide the land (partition in kind) or (b) order sale and divide proceeds among owners after paying liens, costs, and expenses. Include a legal description of the property and attach copies of deeds or probate documents if available.
- Serve process on all parties. Proper service is required so the court has jurisdiction over everyone with an interest.
- Request relief in the complaint. You can ask the court to appoint commissioners, viewers, or a special master to value and divide the property or to sell the property at public or private sale under court supervision.
- Court procedures and hearing. The court may try to have parties agree to a division. If they cannot, it will appoint commissioners to inspect, value, and recommend a division or sale. The court then issues an order directing partition in kind, appointing a commissioner to sell, or ordering a public sale.
- Distribution of sale proceeds. If the property is sold, secured debts (mortgages and liens) and court-ordered costs are paid first. Net proceeds are divided according to each owner’s legal interest.
Special rules and practical points under South Carolina law
- The court prefers partition in kind (dividing the land) when that is practical and will not materially impair the owners’ interests. If a fair division is not feasible, the court orders sale. (See the generally applicable partition provisions at S.C. Code Ann. Title 15, Ch. 41.)
- The court must join all persons who have an interest in the property so that the decree binds everyone with a claim to the property.
- If the property is in your father’s sole name and the estate has not been administered, you will usually need probate to clear title or to have the personal representative join the action on behalf of the estate.
- Liens and mortgages survive a partition. The holder of a mortgage will be paid from sale proceeds according to priority.
Common obstacles and how they affect timing
- Undetermined heirs or missing parties: The court may require more time or special service methods to reach unknown heirs.
- Disputed title or clouds on title: You may need a quiet title action or title work first.
- Ongoing probate: If the estate is open, coordinate the partition with the probate process so the representative’s authority is clear.
- Occupancy disputes: If someone refuses to allow access or collects rent, you can ask the court for a receiver or rent accounting.
When to consider settlement or buyout
Courts encourage negotiated resolutions. Common alternatives to court-ordered sale are:
- One co-owner buys out the others at an agreed price.
- Co-owners enter a mediated agreement dividing responsibilities, sale timing, or rental arrangements.
Why you should consult a lawyer
Filing a partition action raises complex procedural and title questions. A lawyer can:
- Check deeds, mortgages, and probate records to confirm who must be joined.
- Prepare the complaint and handle service and court procedure.
- Protect your interest in receiving the correct share after liens and expenses are paid.
Important disclaimer: This article explains general South Carolina law about partition actions and is for educational purposes only. It is not legal advice. For advice about your specific situation, contact a licensed South Carolina attorney.
Helpful Hints — Practical checklist before you file
- Get the deed and the county property record (tax assessor’s parcel info).
- Obtain a certified death certificate and any probate filings for your father.
- Confirm how title is held (tenants in common vs. joint tenancy vs. solely in decedent’s name).
- List all possible interested parties: heirs, devisees, mortgage holders, lienholders, and the personal representative of the estate.
- Gather mortgage statements, tax bills, homeowner’s insurance, and utility records.
- Contact the county clerk of court or Circuit Court clerk in the county where the property is located for local filing instructions and fees.
- Consider mediation or a buyout offer before filing — it can save time and costs.
- Expect some delay if probate is incomplete, heirs cannot be found, or there are title disputes.
- Ask about fee arrangements: attorneys commonly use hourly or flat-fee billing for partition cases; rare contingency arrangements may apply if the case involves disputed compensation matters, but confirm upfront.
For the statutory framework, see the South Carolina partition statutes: S.C. Code Ann. Title 15, Chapter 41.