Detailed answer — what a partition action is and how it starts in Georgia

When two or more people own real property together and they cannot agree about continuing joint ownership, Georgia law allows one or more owners to ask a court to divide the property or sell it and split the proceeds. This court proceeding is called a partition action. The rules that govern partition in Georgia are found in the Official Code of Georgia Annotated (O.C.G.A.) under the partition provisions (O.C.G.A. § 44-6-160 et seq.). For the official code text, see the Georgia General Assembly website: https://www.legis.ga.gov/ (search “O.C.G.A. 44-6-160”).

Who can file?

Any person who owns an undivided interest in the property (for example, tenants in common) may file. The plaintiff must identify and bring into the lawsuit all known co-owners and persons holding liens or other recorded interests in the property so the court can decide everyone’s rights and how to distribute proceeds.

Where to file

File the partition complaint in the superior court for the county where the property is located. Venue and jurisdiction follow Georgia’s normal superior-court rules for real property disputes.

Basic steps to start the action

1. Confirm ownership and interests. Review deeds, title records, mortgages, judgments, and any recorded liens. Identify every person or entity with a legal interest.
2. Attempt a pre-suit demand (optional but recommended). Georgia practice often favors trying to resolve disputes before court — for example, sending a written demand that the property be partitioned or proposing sale. Sometimes this helps avoid litigation costs.
3. Prepare and file the complaint for partition. The complaint typically states the plaintiff’s ownership interest, names all co-owners and lienholders, describes the property, and asks the court to order a partition in kind (division of the land) or, if division is impractical, a sale and division of proceeds.
4. Serve all parties and lienholders. Every owner and recorded interest-holder must be served with the complaint and given an opportunity to appear and defend their rights.
5. Court proceedings and potential appointment of commissioners. If the court finds partition appropriate, it may appoint commissioners (or referees) to survey, divide, or sell the property. The court will try to effect a partition in kind if it is just and practicable. If physical division would be inequitable or impracticable, the court will order a sale instead.
6. Sale process (if ordered). The court appoints an officer or commissioners to sell the property, typically at public auction or under court-directed terms. Proceeds are held, claims and liens paid in order of priority, and remaining funds distributed to owners according to their ownership shares.
7. Distribution and final accounting. After payment of liens, costs, and any court-awarded attorney fees or costs, the court approves a final accounting and distributes the balance to the owners.

Partition in kind vs. partition by sale

The court prefers to divide property physically (partition in kind) when it can do so fairly and without significant prejudice to any owner. If the property cannot be fairly divided — for example, a single-family home on a small lot — the court usually orders a sale and distributes the proceeds. The court will weigh fairness, practicality, value changes, and how division affects marketability.

Liens, mortgages, and creditors

Recorded liens and mortgages attach to the property and must be addressed in a partition. The court will typically order liens satisfied from sale proceeds according to priority before distributing net proceeds to owners. It is crucial to identify all encumbrances early so they can be included in the case as parties or claimants.

Costs, attorney fees, and how they are paid

Litigation costs, the commissioners’ fees, costs of sale, and court costs usually come out of sale proceeds. In some cases, the court may award attorney fees to a party under statutory or equitable grounds, but attorney-fee awards are fact-dependent. Expect costs for filing, service, appraisal, commission, and potential survey work.

Timeline

Timelines vary. Straightforward cases where owners cooperate can resolve in a few months. Disputed cases with contested ownership, multiple lienholders, or valuation disputes can take much longer — often many months to over a year.

Practical considerations before filing

• Get a current title report to identify all owners, liens, and encumbrances.
• Obtain a recent appraisal or market analysis to estimate value.
• Consider mediation or negotiation first: courts often encourage alternative dispute resolution to save time and cost.
• Be prepared to propose a division plan if you favor partition in kind, or to justify sale if division is impractical.

Key statutory reference: O.C.G.A. § 44-6-160 et seq. (partition statutes). For the official text and related provisions, search the Official Code of Georgia Annotated on the Georgia General Assembly website: https://www.legis.ga.gov/ (search “O.C.G.A. 44-6-160”).

Helpful hints

• Start with a title search: an accurate title report helps you identify every party you must include in the case.
• Ask for documents: gather deeds, mortgage statements, tax bills, surveys, and homeowner association records before filing.
• Try a written settlement demand first — it can sometimes prompt a buyout or negotiated sale without court.
• Consider a short settlement window: asking the court to require mediation or a settlement conference early can reduce costs.
• Plan for costs: appraisal, survey, commissioners’ fees, publication costs for sale notices, and potential lien payoffs add up.
• Expect appraisal disputes: parties often disagree about value; an independent appraisal can help the court divide fairly or set a reserve for sale.
• Include all lienholders: failing to bring a mortgage or recorded lien into the case can complicate or delay the final distribution.
• If you want to keep the property, prepare a buyout plan explaining how you will pay co-owners their shares.
• Consult a Georgia real estate or civil litigator early if ownership or title issues are complex — an attorney can draft pleadings and identify necessary parties and claims.