Alabama: How to Start a Partition Action to Divide or Sell Real Estate

Detailed Answer

If two or more people own the same real property in Alabama and cannot agree about keeping, dividing, or selling it, any co-owner can ask a court to force a division or sale by filing a partition action in the appropriate Alabama court. A partition action lets the court either physically divide the property (partition in kind) or sell the property and divide the proceeds among the owners (partition by sale) when division in kind is impractical.

Who can start a partition action?

Any person with a legal or equitable ownership interest in the property — for example, a joint tenant, tenant in common, or holder of an undivided interest — can file. You must join all persons who have or claim an interest in the property so the court can resolve all claims affecting title.

Which court hears partition actions?

In Alabama, partition actions are typically filed in the circuit court of the county where the property is located. Circuit courts have broad equitable jurisdiction over real property disputes. (See the Code of Alabama and local practice rules for jurisdictional details: Alabama Legislature: Code of Alabama (1975) and Alabama court rules at the Alabama Judicial Branch site.)

Basic procedural steps

1. Try to settle first. Courts expect parties to try negotiation or mediation before litigation. A written buyout offer or mediation agreement can avoid the cost of litigation.
2. Identify necessary parties. Determine every person or entity with an ownership interest, possible claim, mortgage, lien, or easement affecting the property. All such parties should be named in the complaint.
3. Prepare the complaint. The complaint (sometimes called a petition) should describe the property, state each party’s claimed interest, explain that owners cannot agree, and request relief — a partition in kind or, if division in kind is impractical, a sale and distribution of proceeds. Ask the court to appoint commissioners or a special master to value and divide the property, and to enter any orders protecting rents or preserving property pending sale.
4. File in the correct county and serve all parties. File the complaint in the circuit court where the property sits. Serve all owners, lienholders, and other interested parties according to Alabama service rules so the court can obtain jurisdiction over them.
5. Seek interim relief if needed. If the property is deteriorating, being misused, or producing rents, ask the court for temporary orders: appointment of a receiver, injunctions, or orders for collection of rents and protection of the asset before final disposition.
6. Valuation and division. If the court orders partition in kind, it will usually appoint commissioners (or a master) to survey, value, and divide the property fairly according to each owner’s interest. If physical division would substantially reduce value or is impracticable, the court can order a sale, usually at public auction, with proceeds distributed according to each owner’s legal or equitable share after paying costs, liens, and expenses.
7. Distribution and final judgment. The court will enter a final decree confirming the division or sale and directing distribution of proceeds and transfer of title. The decree resolves the co-owners’ competing claims to the property.

Common issues to watch for in Alabama

• Mortgages and liens: Secured creditors are usually paid from sale proceeds in order of priority before owners split the balance.
• Homestead and tenancy protections: Spouses and occupants may have special claims or exemptions that affect sale or distribution.
• Improvements and offsets: The court may consider each party’s contributions to mortgage payments, taxes, repairs, or improvements when allocating proceeds or awarding credits.
• Costs and fees: Court costs, commissioner fees, sale expenses, and attorneys’ fees (if awarded) typically come out of sale proceeds before distribution.
• Timing: Litigation timelines vary. Expect several months to over a year depending on contested issues, title complexities, and court schedules.

Illustrative hypothetical

Three siblings own a lake house as tenants in common. One sibling wants to sell, the other two want to keep it. The selling sibling can file a partition action in the circuit court of the county where the lake house sits, asking either for the property to be divided if possible or sold and proceeds split. The complaint would name all three siblings, any mortgage lender, and anyone else claiming an interest. If division in kind is impossible without destroying value, the court likely will order a sale and distribute proceeds after paying mortgage and sale costs.

Where to find Alabama statutes and rules

Partition practice derives from state statutes and equitable principles applied by Alabama courts. Consult the Code of Alabama and the Alabama Judicial Branch for statutes and procedural rules:

• Code of Alabama (official site): https://www.legislature.state.al.us/
• Alabama Judicial Branch — rules and court information: https://judicial.alabama.gov/rules.cfm

Because statutory numbering and local practice can change, an attorney will cite exact Code sections and controlling case law for your county and situation.

Helpful Hints

• Gather key documents before filing: deeds, mortgage statements, tax bills, leases, insurance policies, and any written agreements among owners.
• Join everyone with a possible interest: failing to join a party who later appears can complicate or undo results.
• Consider mediation: many disputes end faster and cheaper through mediated buyouts or sales than through court.
• Protect income-producing property: ask for temporary orders to collect and preserve rents if others are withholding funds or wasting the asset.
• Expect appraisal and survey costs: the court often relies on appraisals or commissioners’ reports to value and divide property.
• Watch for tax consequences: a sale can trigger capital gains or other tax effects — consult a tax advisor.
• Ask about fees and billing: discuss fee structure, likely costs, and timelines with any attorney before hiring.
• Use bar referral services: the Alabama State Bar and local county bar associations can provide referrals to attorneys who handle partition and real property disputes.

Starting a partition action is a serious step. It forces a final court resolution when owners cannot agree. If you are considering one, collect documents, try negotiation first, and consult a licensed Alabama attorney to review statutes, local court practice, and likely outcomes for your facts.