Detailed Answer
This answer explains how Georgia courts handle partition-by-sale and the role a court-appointed commissioner, and whether a court will approve a private sale to a specific buyer. This is an educational summary only and not legal advice.
Statutory framework
Georgia law permits partition of real property when co-owners cannot agree on possession or disposition. When physical division is impractical, the court may order partition by sale and appoint commissioners to carry out the sale and convey title. See the Official Code of Georgia Annotated (O.C.G.A.) governing partition actions, including the provisions authorizing sale and appointment of commissioners (see O.C.G.A. § 44-6-160 and related sections).
Commonly cited sections include:
- O.C.G.A. § 44-6-160 (circumstances for partition by sale)
- O.C.G.A. § 44-6-161 (appointment and duties of commissioners)
Can the court appoint a commissioner to handle a private sale to a specific buyer?
Yes — but with conditions. In Georgia, a court that orders partition by sale generally has broad discretion to: (1) appoint a commissioner or commissioners to value, advertise, and sell the property; and (2) set the terms under which the sale will occur. A commissioner ordinarily conducts a sale under the court’s directions. The court can authorize a private sale to a particular buyer if the court finds that the proposed sale is fair, in the co‑owners’ best interests, and consistent with the court’s duty to protect all owners’ interests.
What the court will consider before approving a private sale
- Whether partition in kind is practical. If physical division is impractical, sale is appropriate (see O.C.G.A. § 44-6-160).
- Fair market value evidence. The court will expect appraisals, broker opinions, or other valuation evidence showing the private sale price is reasonable.
- Proper notice to all parties. All co‑owners and interested persons must receive notice and an opportunity to object.
- Marketing and opportunity to obtain better offers. If the property has not been properly marketed, the court may require advertisement or a confirmation hearing to ensure the private buyer is not receiving a below‑market, self‑dealing deal.
- Potential conflicts of interest. If the buyer is related to or affiliated with one of the parties (or is a party), the court will closely scrutinize the transaction. The court may require independent appraisals or additional safeguards.
- Commissioner’s report and confirmation. The commissioner typically reports the sale terms and the court must confirm the sale and authorize conveyance.
Typical procedure to request a commissioner for a private sale
- File a motion in the pending partition action asking the court to appoint a commissioner and to authorize a private sale. Describe the buyer, the sale price, and any relationship between buyer and parties.
- Attach supporting evidence: written purchase agreement, appraisal or broker’s price opinion, proof of marketing (if any), and a proposed order describing the commissioner’s duties and sale procedures.
- Request that the court schedule a confirmation hearing and provide required notice to all co‑owners and lienholders.
- If the court appoints a commissioner, the order should specify whether the commissioner may (a) close the private sale directly, (b) must advertise and solicit bids first, or (c) report to the court for confirmation before conveyance.
- After the sale, the commissioner files a report and account. The court confirms the sale, approves distribution of proceeds, and the commissioner conveys title under court order.
Practical considerations and risks
Courts are protective of co‑owners’ rights. If the proposed private sale benefits one owner or is to an insider, expect the judge to require stronger proof of fairness (multiple appraisals, broker statements, evidence of marketing, or an auction option). If other co‑owners object, the court may order advertisement and a public sale or require additional safeguards before approving a private transaction.
What a buyer should know
Buyers purchasing under a court‑ordered partition sale should insist on a clear confirmation process and title assurances. The buyer’s closing should be conditioned on court confirmation and delivery of a commissioner’s deed or other court‑authorized instrument conveying marketable title.
Bottom line: You can ask a Georgia court to appoint a commissioner and to allow that commissioner to effect a private sale to your buyer, but the court must be satisfied the sale is fair, that proper notice and process occur, and that the sale protects the interests of all co‑owners. Expect the judge to review valuation, marketing, and any relationships between buyer and seller closely.
This is not legal advice. Consult a Georgia real property attorney before filing motions or agreeing to sale terms.
Helpful Hints
- Before filing, get at least one independent appraisal and a broker price opinion to support the private sale price.
- Disclose any relationship between the buyer and any party in the partition action in your motion; non‑disclosure weakens your position.
- Propose a clear court order: define the commissioner’s powers, the sale timeline, notice requirements, and confirmation procedure.
- Offer evidence of good‑faith marketing if available (listings, open houses, broker outreach) to show the sale price is fair.
- Be prepared for a confirmation hearing and potential objections; bring documentation showing the sale maximizes value for all owners.
- Ask the court to require a commissioner’s deed and a clear confirmation order to protect the buyer’s title.
- Consider alternative resolutions: negotiated buyout among co‑owners or mediation can avoid the costs and scrutiny of court‑ordered sales.
- Work with a Georgia real estate attorney experienced in partition actions to draft motions, prepare evidence, and handle the confirmation hearing.