How to Start a Partition Action in South Carolina When a Co-Owner Refuses to Cooperate

Disclaimer: This article provides general information only and is not legal advice. It does not create an attorney-client relationship. For advice specific to your situation, consult a licensed South Carolina attorney.

Quick Answer (Overview)

If you own inherited real property in South Carolina with one or more co-owners who refuse to cooperate, you can ask the court to divide the property or order a sale by filing a partition action in the Circuit Court for the county where the land lies. The court can order a physical division (partition in kind) if feasible or a partition by sale with proceeds distributed to owners. You should gather title documents, death and probate records, proof of ownership shares, and try a written demand for partition before filing. The process involves preparing and filing a complaint, serving co-owners and lienholders, obtaining appraisals or surveys if needed, and attending hearings. The controlling statutory framework is in the South Carolina Code, Title 15, Chapter 67 on partition (see https://www.scstatehouse.gov/code/t15c067.php).

Step-by-step: Preparing Before You File

Confirm ownership and shares. Review the deed(s), the will, and probate records to confirm who owns the property and whether owners hold as tenants in common or another tenancy. If the property passed through a probate case, get certified copies of the will, letters testamentary/administration, and the recorded deed transferring title.
Collect key documents. Prepare copies of: recorded deed(s) with legal description, death certificates, probate case number and orders, mortgage/loan documents, tax records, surveys, and any written communications about the property.
Attempt a written demand for partition. Send a clear written demand by certified mail or other traceable means asking the co-owner(s) to agree to a partition, sale, or buyout and allow a reasonable time to respond. Courts favor efforts to resolve disputes without litigation.
Check for liens and encumbrances. Run a title search or check county records to identify mortgages, tax liens, judgments, and other encumbrances. Lienholders must be notified and may need to be joined in the lawsuit.

Filing the Partition Action in South Carolina

Partition actions are equitable remedies filed in Circuit Court in the county where the property is located. See Title 15, Chapter 67 of the South Carolina Code: https://www.scstatehouse.gov/code/t15c067.php.

Choose proper court and venue. File in the Circuit Court for the county where the real property is located. The South Carolina judicial branch site can help you find court locations and clerk contacts: https://www.sccourts.org
Draft the complaint for partition. The complaint should include: names and addresses of all owners and any known lienholders; a clear legal description of the property; a statement of each party’s claimed interest or share; factual background about how title was acquired (inheritance, deed, probate transfer); a demand for partition in kind or, if not practicable, a partition by sale; and a request for any necessary relief such as appointment of commissioners, accounting, rents/expenses, and costs. Attach copies of deeds, probate documents, and the written demand for partition.
File and pay fees. Submit the complaint to the clerk of court and pay the filing fee. If you cannot afford fees, you may apply for in forma pauperis relief under court rules.
Serve defendants and lienholders. Proper service of process is required on all co-owners and any recorded lienholders. The clerk or sheriff typically serves the defendants with the summons and complaint.
Request appointment of commissioners or a referee. The court may appoint commissioners (also called referees or masters) to survey the land, determine the feasibility of partition in kind, and recommend whether a sale should occur. The procedures and powers are governed by statute and court rules (see Chapter 67).

What the Court Decides and How Partition Works

Partition in kind vs. partition by sale. The court will order partition in kind (physical division) when it’s practical and fair. If division would be impractical or inequitable, the court will order a sale and distribute proceeds among owners after paying liens, taxes, costs, and allowed expenses. See S.C. Code Title 15, Ch. 67: https://www.scstatehouse.gov/code/t15c067.php.
Appraisals, surveys and commissioners’ report. The court may order appraisals and surveys. Commissioners inspect the property and submit reports and recommendations. Parties may object and request hearings.
Handling mortgages and liens. Mortgages and liens typically attach to proceeds. The court will determine priority and require payoff or satisfaction before distributing net proceeds.
Costs, rents, and improvements. The court can award contribution for necessary expenses (taxes, insurance, mortgage payments) and account for rents or profits generated by the property while litigation proceeds.

Typical Court Timeline and Practical Considerations

Timelines vary: a straightforward partition can take several months; contested matters with surveys, appraisals, and appeals can take a year or longer. Costs include filing fees, commissioner or surveyor fees, appraisal fees, and attorney fees. Courts may award costs and fees in certain circumstances, but you should plan for upfront expenses.

Alternatives and Strategies to Avoid or Shorten Litigation

Mediation or negotiated buyout. Propose mediation or a buyout—one co-owner purchasing others’ shares—before filing suit.
Voluntary sale. All owners sell the property and split proceeds after liens and costs.
Partition by agreement. If co-owners can agree on a division plan, file a consent order with the court to obtain finality and avoid contested hearings.

Common Problems and How Courts Typically Address Them

Unlocatable co-owners or unknown heirs. The court allows substituted service or notice by publication if good-faith efforts fail; this process takes time and must follow statutory notice rules.
Disagreements about shares or title. The court resolves competing claims of ownership and may order quiet title relief as part of the partition.
Encumbered property (mortgage default). Mortgage holders can assert their rights and may force sale or be paid from proceeds. Failure to address liens can block distribution of sale proceeds.

Helpful Statutes and Resources

South Carolina Code, Title 15, Chapter 67 (Partition): https://www.scstatehouse.gov/code/t15c067.php
South Carolina Judicial Branch — Circuit Court information and local clerks: https://www.sccourts.org

Helpful Hints

Get certified copies of the recorded deed and probate documents before filing; the court will want them attached to your complaint.
Send a written demand for partition and keep proof of delivery—courts look favorably on settlement efforts.
Check county records for mortgages, tax liens, and judgments; you must notify lienholders in the lawsuit.
Obtain an initial title search or talk with a title company to reveal hidden encumbrances.
Consider a survey or boundary sketch early—commissioners often rely on accurate legal descriptions.
Be realistic about partition in kind: rural acreage is more likely to be dividable than a single-family house on a small lot.
Budget for appraisal, survey, and commissioner fees and consider whether mediation or buyout could save money.
If any co-owner is incapacitated or a minor, identify guardians or conservators and include them properly in the action.
Keep careful records of payments for taxes, insurance, and mortgage payments during the litigation; the court may award contribution or reimbursement.
If you need help drafting pleadings or navigating court procedures, consult a South Carolina attorney experienced in real property and partition actions.

Filing a partition action is a formal legal step that can force resolution when co-owners will not cooperate. Proper preparation, clear documentation, and early attempts at settlement can reduce cost and delay. Review the statutes in Title 15, Chapter 67 of the South Carolina Code (https://www.scstatehouse.gov/code/t15c067.php) and contact the local Circuit Court clerk (https://www.sccourts.org) or a qualified attorney for tailored guidance.