Detailed Answer
Short answer: Under Alabama law, a co‑owner who cannot agree with a co‑owner about continued ownership can ask a court to partition the property. The court may divide the land physically (“partition in kind”) or order a sale and divide the proceeds (“partition by sale”). Before filing, you should confirm how title is held (tenancy in common vs. joint tenancy), locate any probate or mortgage issues, and try settlement or buyout talks. If you file a partition action, expect a court to evaluate whether the property can be equitably divided; if not, the court typically orders a sale and allocates the net proceeds among owners after liens and costs.
Who can bring a partition action?
Any person who has an ownership interest in real estate may file a partition action. If you inherited the property and your name (and your sibling’s) is on title as a co‑owner (commonly tenancy in common when inherited), you have standing. If title passed through probate but has not been transferred to deed, you may first need to finish the probate or have the executor transfer title into the heirs’ names.
Key steps to force a partition sale in Alabama
- Verify ownership and title type. Check the deed and probate records. If you are tenants in common, each owner has a right to seek partition. Joint tenancy with right of survivorship can complicate matters.
- Gather documents. Collect the deed, any mortgage or lien documents, property tax records, homeowners insurance, and probate paperwork (if your father’s estate is involved).
- Try to resolve it first. Send a written demand proposing a buyout, sale, or mediation. Courts often expect parties to attempt settlement before litigating.
- File a partition complaint in the county where the property is located. The complaint names all co‑owners and any parties with recorded interests (mortgage holders, judgment lienholders). The court will issue process to notify everyone.
- Court considers partition in kind vs. sale. The judge will determine whether the property can be fairly divided. If physical division would be impractical or unfair (common with a single-family house on one lot), the court usually orders a partition by sale.
- Appointment of a commissioner or master. The court often appoints a commissioner or special master to handle valuation and the mechanics of sale. The commissioner may sell at public auction or by private sale under court supervision.
- Pay off liens and expenses and divide net proceeds. Proceeds go first to pay mortgages, tax liens, sale costs, and court costs. The remaining balance is divided among co‑owners according to their ownership shares.
- Possible redemption or rights to bid. Depending on the terms of sale and local practice, co‑owners may have the opportunity to buy at sale or submit sealed bids.
Practical issues to expect
- Mortgages and liens survive the death of an owner and must be paid from sale proceeds or otherwise resolved.
- Probate: If title has not been transferred out of your father’s estate, you may need to complete probate before a clean partition or the court may join the executor/administrator to the action.
- Costs and timing: Partition suits can take several months to more than a year depending on court backlog, whether title is clear, and whether parties litigate valuation and sale method.
- Occupancy: The court can rule on possession (who lives there and who pays expenses) while the action is pending, but you should not self‑help by changing locks or removing occupants without court permission.
Relevant Alabama law (where to read more)
Alabama law recognizes the right of co‑owners to seek partition in the courts. For statutory text and related provisions, see the searchable Code of Alabama through the state legislature website: Code of Alabama (searchable). The Code and court forms will help you identify procedural requirements in your county.
When to hire an Alabama real‑estate or probate attorney
Consider an attorney if:
- Title is unclear, or the property is still in probate.
- There are liens, unpaid taxes, or mortgages on the property.
- Your co‑owner refuses to cooperate or threatens self‑help eviction.
- You need help preparing and filing a partition complaint, or reviewing offers and bids.
Disclaimer: This article is for general information only and is not legal advice. It does not create an attorney‑client relationship. For advice about your specific situation, consult a licensed Alabama attorney.
Helpful Hints
- Confirm how the property is titled before taking action. Tenancy in common is the most common form after inheritance and gives each owner a partition right.
- Try a written buyout offer to your sibling first. A negotiated sale or buyout will usually be faster and less expensive than litigation.
- Collect and preserve documents: deed, mortgage statements, tax bills, insurance, and any probate paperwork.
- Be realistic about costs: sales, court costs, and attorney fees reduce net proceeds. Factor these into any settlement offer.
- Consider mediation. Courts often require or encourage mediation in property disputes, and a mediator can help reach a practical resolution.
- Don’t block access or remove belongings without a court order. Doing so can expose you to liability for wrongful eviction or conversion.
- If you live in the home and pay the mortgage or taxes, document those payments; the court may account for contributions when dividing proceeds.
- When in doubt, get a short initial consultation with a local real estate or probate lawyer to map out options and estimated costs.