Detailed Answer — Getting Your Share After a Partition Sale in South Carolina
This article explains, in plain language, how a co-owner in South Carolina can obtain their share of the net proceeds after a court-ordered partition sale of real property. This is an educational overview and not legal advice.
What a partition sale is and who controls the money
A partition action is a lawsuit that asks a court to divide or sell property owned by two or more people when they cannot agree. If the court orders a sale (usually because dividing the land is impractical), a sale will be held and the sale proceeds are used to pay liens, sale costs, taxes, and court-ordered expenses. After those deductions, the remaining money (the net proceeds) is distributed among the owners according to their ownership interests or any equitable adjustments the court orders.
How distribution typically works in South Carolina
- The court directs the sale and appoints a person (often called a commissioner) to handle the sale and report the results to the court.
- Sale proceeds first satisfy valid liens, mortgages, taxes, sale expenses (commissions, advertising), and court-ordered costs.
- After the court confirms the sale and allows for any required redemption or appeals period, the remaining funds are placed with the court or clerk and become available for distribution.
- The court will order distribution of the net proceeds. The order usually states how much each party receives after any credits, offsets, or equitable adjustments (for example: payments of the mortgage by one co-owner, necessary repairs, rents collected, or waste caused by a co-owner).
- If a co-owner or lienholder is owed money, the court’s distribution order is the document that directs the clerk or the parties’ attorneys to pay specific amounts to specific people or creditors.
Practical steps you should take to receive your share
- Confirm your ownership interest. Have a copy of the deed(s) showing your ownership percentage or form of ownership (tenants in common, joint tenants, etc.).
- Participate in the partition lawsuit. File an answer, counterclaim, or claim in the partition case so the court recognizes your interest. If you skip this, the court may proceed without protecting your rights.
- Tell the court and the commissioner how much you claim and why. If you believe you should receive an offset (for mortgage payments you made, repairs you paid for, or rents you collected), present receipts, accountings, bank records, and testimony during the proceedings.
- Watch the sale confirmation. The court’s confirmation of sale and its subsequent order(s) determine when and how funds are distributed. Keep copies of the sale report and the court’s distribution order.
- Follow the clerk’s process for collecting funds. After the court orders distribution, the clerk or the parties’ attorneys will issue checks or transfer funds to the people or creditors named in the order. Ask the clerk how to claim your payment if you don’t receive it automatically.
- If someone refuses to pay what the court ordered, enforce the order. You can ask the court to enforce its judgment by writ of execution, garnishment, or contempt proceedings if necessary.
Common issues that affect what you actually receive
- Liens and mortgages are paid first. If the property had a mortgage or judgment lien, those creditors get paid out of sale proceeds before owners receive distributions.
- Equitable adjustments. Courts often allocate proceeds to reflect contributions and losses (e.g., mortgage payments, taxes, necessary repairs, rents and profits). Keep records proving such payments.
- Attorney fees and sale expenses. Reasonable attorney fees and sale costs reduce the net proceeds available for distribution.
- Timing. Distribution can take weeks to months after the sale if the court requires a report, confirmation hearing, or appeals/redemption period.
- Tax consequences. Receiving proceeds from a sale can trigger capital gains or other tax reporting—talk to a tax advisor.
Where to find the law and forms in South Carolina
South Carolina statutes and court rules guide partition sales and distribution procedure. For text of the South Carolina Code and to search statutes, start at the official state code site: https://www.scstatehouse.gov/code.php. For court procedures and self-help information, visit the South Carolina Judicial Branch: https://www.sccourts.org/selfHelp/.
When you should strongly consider hiring an attorney
- If other parties dispute ownership shares or claim offsets against you.
- If large liens, bankruptcy issues, or complex title issues exist.
- If you need to enforce a court distribution order against an uncooperative co-owner.
- If tax consequences or significant sums are at stake and you need advice on structuring distribution or minimizing tax costs.
Disclaimer: This information is educational only and is not legal advice. It does not create an attorney-client relationship. For advice about your specific facts and to protect your rights in a partition case, consult a licensed South Carolina attorney.
Helpful Hints
- Gather and keep all ownership documents: deeds, closing statements, mortgage and payment records, tax bills, and receipts for repairs or improvements.
- File a timely appearance in the partition case so the court knows you claim an interest.
- Prepare an accounting showing what you paid (mortgage, taxes, utilities, repairs) and what you received (rents, insurance proceeds). The court uses these numbers to make equitable adjustments.
- Consider negotiating a buyout before the sale—buyouts often save time and expense compared with a sale at auction.
- Ask the clerk how distributions are made (check, wire, or attorney escrow) so you can provide necessary payout information promptly.
- Keep copies of the court’s sale confirmation and distribution order—those are your proof when collecting funds or enforcing the judgment.
- Talk to a tax professional about reporting the proceeds and possible capital gains consequences before you spend the money.