South Carolina: Forcing a Sale of Jointly Owned Property (Partition Actions) | South Carolina Partition Actions

Detailed Answer

If you and another person own real estate together in South Carolina and one owner will not cooperate or will not continue mediation, the main legal tool to force a sale is a court action called a partition. A partition action asks the Circuit Court in the county where the property is located to divide the property among the owners (partition in kind) or, if division is impractical, to order a sale and divide the proceeds. This article explains how that process generally works, what steps to expect, what evidence to collect, and what issues commonly arise in South Carolina.

What law controls partition actions in South Carolina?

Partition actions are governed by South Carolina civil procedure and equitable principles. See the South Carolina Code for provisions related to actions for partition and the court’s powers in such suits. For statutory reference, see South Carolina Code, Title 15 (Civil Practice), chapter on actions for partition: https://www.scstatehouse.gov/code/t15c027.php.

Who can file and where do you file?

Any owner with a present ownership interest in the property (for example, a tenant in common or sometimes a joint tenant) can file a partition action. You file in the Circuit Court for the county where the property is located. The complaint names all co-owners and any parties with recorded interests (mortgage holders, lien claimants).

Typical relief requested in a partition complaint

Declare the ownership shares and order partition in kind if the court finds a fair division is practical.
If the property cannot be fairly divided, ask the court to order partition by sale and direct how the sale should occur (public auction, sale by commissioner, or sale through a broker/court-supervised sale).
Ask for accounting of rents, profits, expenses, taxes, and mortgage payments and for distribution of net proceeds after liens and costs.
Request appointment of a commissioner or referee to manage the division or sale.
When appropriate, request temporary relief (a restraining order or injunction) to preserve value—for example, to prevent a co-owner from removing fixtures or selling their interest to a third party before the court decides.

How the court decides between partition in kind and sale

The court will consider whether the property can be physically divided without materially reducing value and whether division would be fair given the owners’ shares and the property type (residential lot, single-family home, farm, commercial property). If dividing would materially harm the value or is otherwise impracticable, the court typically orders sale and splits net proceeds among owners after paying liens and court-approved costs.

Process and timeline

Prepare and file complaint for partition with a legal description of the property and list of owners and lienholders.
Serve co-owners and any lienholders. They have an opportunity to respond or assert counterclaims (for example, adverse possession or claims that they own a larger share).
The court may schedule a hearing and may order discovery (records, appraisals, accountings) and may encourage or order mediation. If a co-owner refuses mediation, you can still proceed to trial—mediation is not always mandatory.
If the court determines in-kind partition is not appropriate, it will authorize sale. The court usually appoints a commissioner or authorizes a sale process (public auction or supervised private sale). A sale can take several months after the court’s order, depending on scheduling, appraisal, and marketing.
After sale, the court approves the sale, deducts liens, taxes, commission, costs, and distributes net proceeds according to ownership shares or court order.

Costs, fees, and payments

You will incur court costs, fees for a commissioner or referee, appraisal costs, and attorney fees. South Carolina courts may award attorney fees in certain equitable circumstances (for example, where a party acted in bad faith or there is a contractual basis for fee recovery). Ask your attorney about whether you can recover fees in your specific case.

Practical steps to prepare

Before filing or meeting an attorney, collect key documents and information:

Recorded deeds or other proof of ownership; chain of title documents.
Mortgage statements and any recorded liens or judgments.
Property tax bills and payment history.
Records of expenses, improvements, rental income, or payments made for the property.
Any written agreements (buy-sell agreements, partition-by-agreement, or buyout offers).
Photos and evidence if there is damage, waste, or removal of fixtures.

Common complications and defenses

Co-owner claims adverse possession or exclusive ownership—these require proof and can complicate or lengthen the case.
Bankruptcy filings by a co-owner can trigger an automatic stay and pause the partition sale until the bankruptcy court lifts the stay.
Unrecorded agreements among owners can create disputed equitable rights.
Mortgages and liens must be addressed—typically paid from sale proceeds before distribution.

Alternatives to a court-forced sale

Negotiate a buyout: one owner buys the other’s interest for an agreed price or formula.
Agree to a private sale and divide proceeds—often faster and cheaper than a court sale.
Settle terms in mediation or use neutral valuation methods to reach agreement.

When to hire an attorney

Partition actions involve complex title, equitable, and procedural issues. Hire a South Carolina real estate or civil litigator when:

The co-owner refuses mediation or negotiation and you want to force a sale.
There are liens, mortgages, or bankruptcy concerns.
Disputes about ownership shares, improvements, or accounting exist.
You need temporary injunctive relief to protect the property.

Practical example (hypothetical): Two siblings own a vacation home as tenants in common. One sibling moved away and refuses further mediation or offers to sell. The other sibling files a partition action in the county Circuit Court, asks the court to order a sale, requests an accounting for rental income and expenses, and asks the court to appoint a commissioner to manage the sale. After hearing, the court finds physical division impracticable, authorizes a public sale, approves the sale terms, pays off the mortgage from proceeds, and distributes net funds according to the owners’ shares.

Statute reference: For statutory provisions on actions for partition in South Carolina, consult South Carolina Code, Title 15 (Civil Practice), chapter on partition: https://www.scstatehouse.gov/code/t15c027.php.

Disclaimer: This information is for educational purposes only and is not legal advice. It does not create an attorney-client relationship. Laws change and every situation is unique. Consult a licensed South Carolina attorney for advice about your specific facts and representation.

Helpful Hints

Start with a clear chain of title: locate deeds and recorded documents before contacting an attorney.
Always consider a buyout or private sale first—court partition is effective but often slower and costlier.
Keep records of all payments, repairs, rents, and communications with the co-owner—these help in an accounting.
If the co-owner threatens to sell to a third party, seek immediate legal advice about temporary injunctive relief.
Expect months (often 6–12+ months) from filing to final sale, depending on complexity and objections.
Be aware of bankruptcy: if a co-owner files for bankruptcy, partition and sale may be delayed by an automatic stay.
Ask whether an attorney can advance costs and whether fee-shifting may be available if the other party acted in bad faith.
Discuss whether a court-supervised sale or private broker-led sale will likely yield better net proceeds for distribution.