Selling Property in a Partition Action — Alabama

Detailed answer — overview of the sale process in an Alabama partition action

When co-owners cannot agree how to end shared ownership of real property, one co-owner can file a partition action in the county where the property is located asking the circuit court to divide the property (partition in kind) or, when division in kind is impractical or unfair, to order a sale of the property and divide the proceeds among the co-owners (partition by sale).

Alabama law gives courts broad authority to force either type of partition. The typical sale process in a partition action follows these steps: filing, service and notice, appointment of a commissioner, appraisal and sale preparation, public sale or auction, court confirmation, and distribution of proceeds (after paying costs and secured claims). Below are the usual steps in more detail and practical points you should know when you or a co-owner seeks a sale.

1) Filing the partition action

A co-owner (plaintiff) files a complaint for partition in the appropriate circuit court. The complaint identifies the property, the names and interests of all co-owners, and asks the court either to divide the property between the co-owners or to order a sale and divide the proceeds. The complaint should also identify any mortgages, liens, leases, or other encumbrances on the property so the court can address them when dividing proceeds.

2) Service of process and required notice

The plaintiff must serve the complaint on all known co-owners and other parties with recorded interests (mortgagees, lienholders, and sometimes tenants). The court’s rules determine the method and timing of service and publication if any parties cannot be located. Proper notice is essential; a sale ordered without giving required notice can later be set aside.

3) Hearing and determination whether to divide or sell

The court often asks whether the property can be divided fairly. If the court finds division in kind is practicable — for example, distinct parcels that can be physically split — it may order that division. If division would be unfair, impracticable, or diminish the property’s value, the court may order sale and division of the proceeds.

4) Appointment of a commissioner or master to handle the sale

The court commonly appoints a commissioner, master, or special referee to handle valuation, advertising, and the mechanics of the sale. The appointed person has the authority, subject to court directions, to obtain appraisals, arrange the sale, receive bids, and report the results back to the court.

5) Appraisal, advertising, and preparing for sale

The commissioner usually obtains one or more appraisals or orders an independent market valuation. The commissioner will advertise the sale in line with court directions and state law — often through newspaper publication, postings, and possibly online listings. The sale terms and minimum bid (if any) will be set by the court or commissioner.

6) Public sale/auction and bidding

Sales are commonly public auctions where the highest qualified bidder wins. Some courts allow private sales if the court finds a private sale will yield a better price; such sales typically require more court oversight and a detailed report to the court. Co-owners may often bid at the sale; a co-owner who purchases the property will hold the property subject to the same title and encumbrances unless the court orders otherwise.

7) Court confirmation of the sale

After the sale, the commissioner files a report and the court holds a confirmation hearing. The court can confirm the sale, set it aside, or require additional steps if the sale was irregular or the price was unconscionably low. Confirmation typically clears title in the buyer’s favor; the court will then order distribution of the sale proceeds.

8) Payment of liens, costs, and distribution of net proceeds

From the sale proceeds the court directs payment of outstanding mortgages and liens (in the established priority), the commissioner’s fees, advertising and auction costs, court costs, and any other claims the court orders paid. The remaining net proceeds are divided among co-owners according to their ownership shares unless the court directs otherwise based on equitable considerations.

Practical variations and important points

• Equitable considerations: Even if recorded ownership shows equal shares, a court can consider equitable claims (contributions to mortgage payments, improvements, or waste) when allocating proceeds.
• Buyouts: A co-owner may buy out others by paying their share before sale, which can be faster and less costly than a public sale.
• Liens and mortgages: Mortgages survive partition. A lender with a valid lien must be paid from sale proceeds or the buyer typically takes the property subject to the mortgage. Addressing lien priority early prevents surprise claims at confirmation.
• Title defects and third-party claims: Outstanding title issues, adverse claims, or claims by judgment creditors can complicate sale and distribution; the court may require them to be resolved or paid from proceeds before distribution.

For the applicable statutory framework and procedural provisions in Alabama, consult the Code of Alabama and local circuit court rules. The Alabama Legislature’s website provides searchable code text and public access to statutes: https://www.legislature.state.al.us/

Common timeline and costs

Timelines vary with complexity, contested issues, and local court dockets. A straightforward partition by sale may take a few months; contested actions with title or lien disputes can take a year or longer. Costs include court filing fees, service and publication costs, appraisal and commissioner fees, attorney fees (if retained), and broker or auction fees. Those costs are typically paid from the sale proceeds before owners receive their shares.

When to talk to an attorney

Consult an Alabama real property attorney when:

• Co-owners disagree and you are considering filing or responding to a partition action.
• There are mortgages, tax liens, judgment liens, or other encumbrances on the property.
• One owner claims a different ownership interest, contribution, or equitable lien.
• Title defects, unknown owners, or missing heirs may require special notice or resolution.

An attorney can advise whether a buyout, negotiated sale, or court-ordered partition is the most efficient and cost-effective route given your goals.

Helpful Hints

• Gather documentation: deed(s), mortgage(s), tax statements, expense records, and any written agreements among owners. These help the attorney and the court determine shares and contributions.
• Identify all parties with recorded interests: mortgagees, judgment creditors, lessees, and heirs. Failing to identify lienholders can delay or invalidate a sale.
• Consider a negotiated sale first. A private sale and voluntary division often saves time and fees compared with litigation.
• Be realistic about market value. Courts will favor solutions that maximize value for all co-owners.
• Expect costs to come off the top. Legal and sale-related costs are paid before owners receive their net shares.
• If you plan to bid, know the sale terms and whether any deposit or proof of funds is required by the commissioner or court.
• Preserve evidence of contributions (mortgage payments, taxes, repairs). If you seek an unequal division or reimbursement, documentation matters.
• Check local rules. Different circuit courts may have local procedures for commissioners, notices, and confirmation hearings.