Detailed Answer
Short answer: If co-owners of real property in Alabama cannot reach agreement in mediation and a partition action proceeds, a judge can order the house sold and the sale proceeds divided among the owners according to their ownership shares after paying liens, costs, and any court-ordered adjustments.
This article explains how that process typically works in Alabama, what factors a court considers before ordering a sale, what happens at sale, and practical steps co-owners can take to protect their interests.
Key legal framework
Partition actions in Alabama are governed by the state statutes addressing partition of land (commonly cited as Ala. Code § 6-6-1 et seq.). The statutes give courts the authority to divide property physically (partition in kind) when practical or to order the property sold and the proceeds divided when physical division is impractical or would be unfair. For official text and details, see the Code of Alabama pages on the Alabama Legislature site: https://www.legislature.state.al.us/alacode/ (see Title 6, Chapter 6 on partition).
When a judge orders sale instead of dividing the land
The court first considers whether it is feasible to physically divide the property so each owner receives a distinct portion (partition in kind). If division would be impractical, would materially injure one or more owners, or produce inequitable results, the court may order a sale and division of the proceeds. Common reasons the court orders sale include:
- The lot is a single-family house on a single parcel that cannot be split without making parts unusable;
- There are unequal interests or improvements such that an in-kind division would be unfair;
- There are competing liens, mortgages, or claims that make a sale cleaner and fairer.
Practical steps in a partition sale
- Filing the partition suit: One co-owner files a complaint asking the court to partition the property.
- Appointment of commissioners or referees: The court often appoints commissioners to value the property, attempt to divide it, or arrange terms of sale.
- Attempted partition in kind: If possible, the commissioners or the court will try to divide the property.
- Sale order: If partition in kind is impossible or inequitable, the court will order a sale of the property—often at public auction or by other means the court approves.
- Payment of obligations: Mortgage liens, tax liens, and valid judgments that attach to the property are paid from sale proceeds first.
- Deduction of sale costs: Commissioner’s fees, advertising, closing costs, and attorney fees allowed by the court are deducted next.
- Distribution of net proceeds: The remaining proceeds are divided among the co-owners according to their legal ownership shares (tenancy in common, joint tenancy adjustments if applicable) or as the court determines fair after credits for improvements, rents, or contributions.
How ownership shares, liens, and mortgages affect distribution
If a mortgage or other lien exists on the property, the lienholder generally has priority and receives payment from the sale proceeds before co-owners receive their shares. If one co-owner has paid more than their share of mortgage, taxes, or repairs, they can ask the court for an accounting and possible credit against their share. The court may adjust distributions to reflect such equities.
Timing and notices
A partition action can take several months depending on scheduling, valuation, mediation attempts, and potential appeals. The court will typically require that all interested parties receive notice of the action and of any sale so they can object, bid, or protect rights.
Options for co-owners before or after sale is ordered
- Buyout: One or more co-owners can offer to buy the others’ interests at a fair appraisal value, avoiding a public sale.
- Setoff and accounting: Request the court to credit one owner for payments they made (mortgage, taxes, repairs) before distribution of proceeds.
- Raise objections: If you believe the sale price is unfair or procedure flawed, you can object in court and, if necessary, appeal the sale after it occurs.
- Settlement: Even after a partition suit is filed, parties can settle privately (for example, by refinancing, selling to a third party by agreement, or agreeing on unequal distribution).
Hypothetical example
Two siblings own a house as tenants in common. Mediation fails. The court finds that dividing the house would be impractical and orders a sale. The house sells at auction for $200,000. There is an outstanding mortgage of $80,000 and $10,000 in court-approved costs, fees, and liens. The court orders distribution: mortgage paid ($80,000), costs paid ($10,000), net $110,000 to be split according to the siblings’ ownership shares (for example, 50/50 → $55,000 each), with adjustments if one sibling is entitled to reimbursement for past expenditures.
What you can expect for costs and timelines
Partition actions create additional costs (court filing fees, appraisers, commissioners, advertised sale costs, and attorneys’ fees). Those costs usually come out of sale proceeds. The process takes time—often many months—and may take longer if there are disputes or appeals.
Where to find the statutes and further reading
Look for the partition statutes in the Code of Alabama (Title 6, Chapter 6). The Alabama Legislature hosts the code online: https://www.legislature.state.al.us/alacode/. If you anticipate a partition action, review the partition chapter and talk with a lawyer experienced in Alabama real property and civil litigation.
Disclaimer: This is an informational overview only and not legal advice. It does not create an attorney-client relationship. For advice about your specific situation, consult a licensed Alabama attorney.
Helpful Hints
- Get a current, independent appraisal to establish fair market value before negotiations or sale.
- Collect documentation of payments you made (mortgage, taxes, repairs) to support any claim for credit in court.
- Consider a buyout offer to avoid the uncertainty and costs of a public sale.
- Ask the court early for an accounting or for appointment of a receiver if rents, utilities, or expenses are in dispute.
- Understand lien priority: mortgage and tax liens generally must be paid before owners receive proceeds.
- Keep proof of property ownership (deed), mortgage statements, and any written agreements between co-owners readily available.
- Be mindful of deadlines to object to appraisals, sale reports, or distribution orders to protect appeal rights.
- Talk with an Alabama real property attorney about settlement options before the court orders a sale—settlement can save time and money.