Detailed Answer — How co‑owners start a partition action in South Carolina
This answer explains, in plain language, how co‑owners (people who share ownership of real property) can ask a South Carolina court to divide or sell that property through a partition action. This is an informational guide only and is not legal advice.
What is a partition action?
A partition action is a civil lawsuit brought by one or more co‑owners to physically divide property among the owners (partition in kind) or, if division is impractical, to have the court order a sale and divide the sale proceeds among owners (partition by sale).
Who can file?
Any person or entity that holds a legal or equitable ownership interest in the property may file a partition action. That typically includes co‑owners who hold title as tenants in common or as joint tenants. If there are mortgages or other liens, mortgagees and lienholders usually must be joined or notified, because their interests affect how proceeds are distributed.
Where to file
File the action in the circuit court for the county where the property is located. South Carolina’s partition law is found in the state statutes that govern actions for dividing real property; see the relevant chapter of the South Carolina Code of Laws for statutory details: S.C. Code Ann., Title 15 — Chapter on Partition Actions. You can also get local filing information from the county clerk or the South Carolina Judicial Department: sccourts.org.
Typical steps to initiate a partition action
- Confirm ownership and interests. Gather the deed(s), recorded plat or survey, title reports, mortgage statements, tax records, and any written agreements among the owners that affect division or sale rights.
- Decide the relief you want. You will ask the court either to divide the land physically (partition in kind) or, if division would be unfair or impracticable, to order a public or private sale and split the proceeds (partition by sale).
- Prepare the complaint (petition). The complaint should identify the property by legal description or deed references, name all co‑owners and known lienholders, state each party’s claimed interest, describe attempts (if any) to reach agreement, and clearly ask the court for partition in kind or sale.
- Join required parties and serve process. South Carolina procedure requires that all owners and persons or entities with recorded interests (mortgages, liens) be joined or notified so the court can determine rights. Proper service of process is required so that the court can assert jurisdiction over all interested parties.
- File and pay fees; request appointment of commissioners (if applicable). After filing the complaint and serving parties, the court may appoint commissioners or referees to survey, value, and report on practical division. In many cases, the court orders a hearing after the commissioners’ report.
- Court hearing and order. After reviewing evidence and any commissioner reports, the court will decide whether to divide the property in kind or order a sale. If sale is ordered, the court will direct the method of sale and how costs and liens will be paid from sale proceeds.
Partition in kind vs. partition by sale
South Carolina courts prefer partition in kind when it can be done without prejudicing co‑owners. The court will consider whether the land can be physically divided into portions of roughly equal value and whether division would be practical. If physical division would damage value or is impractical (for example, a single house, small lot, or property needing shared access), the court may order a sale and distribution of proceeds.
How liens, mortgages, and costs are handled
Liens and mortgages remain attached to the property until paid. When a sale occurs, mortgage holders and lienholders are typically paid from sale proceeds in priority order before net proceeds are split among co‑owners according to their ownership share. Court costs, commission fees, advertising and sale expenses, and any amounts the court allows for necessary improvements or liens are deducted as well.
Timing and costs
Partition lawsuits vary in length. Simple cases where co‑owners cooperate and no serious title disputes exist may resolve in a few months. Contested matters, disputes over interests, or complex titles can take a year or longer. Costs include filing fees, service fees, attorneys’ fees (if any party hires counsel), commissioners’ and appraisal fees, and sale costs. The court may allocate some costs between parties based on fairness.
Alternatives to a court partition
- Negotiate a buyout where one co‑owner purchases the others’ interests.
- Sell the property by agreement and split net proceeds.
- Mediation to reach a consensual division or sale plan.
- Quiet title actions if title defects block a simple resolution.
Practical checklist before filing
- Get a current title report or run a deed search to identify all owners and recorded liens.
- Obtain a property survey or plat and a recent tax bill.
- Compile deeds, mortgage statements, HOA documents (if applicable), and any written co‑ownership agreements.
- Document any attempts to resolve the dispute (emails, letters, offers).
- Prepare names and addresses for all owners, lienholders, and parties with recorded interests for service.
Where to find forms and more information
South Carolina circuit courts and the South Carolina Judicial Department can provide filing instructions and local rules. For state statutory guidance on partition actions, see the South Carolina Code of Laws chapter on partition actions: S.C. Code — Partition provisions. For court forms and self‑help resources, visit the South Carolina Judicial Branch: sccourts.org.
When you should strongly consider hiring a lawyer
Consider hiring an attorney when any of the following apply:
- Title, ownership shares, or lien priorities are contested.
- The property contains a dwelling or improvements that make physical division impractical.
- There are multiple out‑of‑state owners, unknown heirs, or complex lien situations.
- You face imminent foreclosure, bankruptcy, or other time‑sensitive claims affecting the property.
An attorney can prepare the complaint, correctly join and notify all necessary parties, advocate at hearings, and help protect your financial interest during valuation, sale, or division.
Disclaimer: This article explains general principles of South Carolina law and common procedures for partition actions. It is for educational purposes only and is not legal advice. For advice about your particular situation, consult a licensed South Carolina attorney.