Detailed Answer
This article explains, in plain language, the usual steps and legal mechanics someone in South Carolina should expect when asking a court to divide (partition) real property co-owned with others — for example, asking a court to force a sale of your parents’ house or to require a sibling to buy out your undivided share. This is a general guide and not legal advice.
1. Who can bring a partition action?
A partition action is available to a person who owns an interest in real property together with one or more co-owners (for example, tenants in common). If the property is owned jointly with right of survivorship (joint tenancy), the ownership form affects remedies, so check the deed and title. Start by pulling the deed and any probate or trust documents that show how title is held.
2. Preliminary steps before filing
- Confirm ownership: get a copy of the deed from the county register of deeds.
- Check for liens and mortgages: outstanding loans or liens attach to the property and affect net proceeds.
- Try negotiation or mediation: courts often expect parties to try to resolve disputes before asking for a sale. A written demand letter proposing a buyout or sale terms can help later if you go to court.
- Get a valuation estimate: a broker CMA or appraisal helps set realistic buyout figures and settlement offers.
3. Where and how to start the legal case in South Carolina
File a civil complaint for partition in the proper court in the county where the property is located. In South Carolina, partition actions are generally handled in the circuit court (equity side) or before a master in equity in counties that use that procedure. The complaint names all co-owners and any lienholders as defendants and asks the court to divide the property or order its sale and distribute the proceeds.
Because statutory and procedural rules apply, you will need to follow the South Carolina rules of civil procedure for filing, serving defendants, and giving public notice when required.
4. What the court does after the complaint is filed
- Service and notice: the court will require that all interested parties (co-owners, mortgage holders) be served with the complaint.
- Lis pendens or notice to public records: the filing may be recorded to warn potential buyers or lenders that the property is subject to the lawsuit.
- Appointment of commissioners or master: the court often appoints neutral appraisers, commissioners, or a master to examine the property, appraise it, and recommend whether the property can be partitioned in kind (divided physically) or must be sold.
- Hearing and findings: the court will decide whether a physical division is practicable. If the court determines a fair physical division is not feasible, it commonly orders a sale and divides net proceeds among owners according to their ownership shares after paying liens, costs, and taxes.
5. Partition in kind vs. partition by sale
Partition in kind means the court divides the real estate itself so each owner gets a distinct piece. Courts prefer partition in kind only when it is practical and fair. If dividing the property would be impractical or would substantially reduce value, the court will order a sale (public auction or private sale subject to court approval) and distribute the proceeds.
6. How a buyout (one co-owner buying another’s share) typically works
If a co-owner wants to buy your share, parties can agree on a buyout price and have the purchaser refinance or pay cash to clear the seller’s interest. If you cannot agree, the court’s appraisal establishes value; the court can then allow a co-owner to purchase the other interests at or before sale, or the buyer can buy the property at a court-ordered sale and pay the other owners their share from sale proceeds. Negotiating before filing — or during the case using the appraisal number — often produces quicker, less expensive results.
7. Liens, mortgages, taxes and distribution
Outstanding mortgages and liens must be paid from sale proceeds. The net proceeds are split according to ownership shares after court-ordered costs, commissions, and liens are satisfied. If one co-owner made substantial improvements or paid mortgages, courts may consider credits or set-offs; document any extra contributions you made.
8. Costs, timeline and likely outcomes
Partition cases can take several months to over a year depending on complexity, contested facts, and whether the court orders appraisals or hearings. Costs include filing fees, appraisal fees, attorney fees, and sales commissions. Courts may sometimes award costs or attorney fees in limited circumstances, but you should plan for legal fees unless you reach a negotiated settlement.
9. Practical considerations and risks
- Forced sale may fetch less than private-market negotiated sales.
- The court’s appraisal controls if you can’t agree.
- Mortgage holders can block a sale unless the payoff is satisfied at closing or the lender agrees to release its lien.
- Family dynamics: litigation can permanently damage relationships; consider mediation first.
10. Where to look in South Carolina law
Partition actions and equitable remedies fall under South Carolina court rules and the civil code governing remedies and procedure. For statutory context, see the South Carolina Code, Title 15 (Civil Remedies and Procedure): https://www.scstatehouse.gov/code/title15.php. For local court procedure and forms, the South Carolina Judicial Branch is a good practical resource: https://www.sccourts.org/.
11. When you should call an attorney
Consult a South Carolina attorney if any of the following apply: title or ownership is unclear; liens or mortgages exist; you want help valuing or negotiating a buyout; you anticipate a contested partition; or you want advice about tax consequences or protecting your financial interest. An attorney can prepare and file the complaint properly, handle service, represent you at hearings, and protect your share of the proceeds.
Disclaimer: This information is educational only and is not legal advice. I am not a lawyer. Laws change and every situation is different; consult a licensed South Carolina attorney for advice about your particular facts.
Helpful Hints
- Obtain a certified copy of the deed from the county register of deeds before doing anything else.
- Gather proof of payments you made for mortgage, taxes, or improvements — the court may consider them.
- Send a clear written demand to your sibling proposing either a buyout price or a sale and document their response.
- Consider mediation — it’s faster and cheaper than court and keeps options private.
- Get a preliminary appraisal or broker opinion to support a buyout offer or settlement position.
- Ask about a “lis pendens” with your attorney if you file: it protects the property from interim transfers while the case proceeds.
- Plan for costs: factor in legal fees, appraisal and sale costs, and possible commission if the court orders a sale.
- Check possible tax consequences of sale vs. buyout and consult a tax professional if needed.