What happens if mediation fails and I need to file a partition action to force the sale of our jointly owned land? (South Carolina)

Short answer: If mediation fails in South Carolina, a co-owner may file a partition action in civil court asking the court to divide the property or order a sale and split the proceeds. The court will follow statutory and procedural steps to determine whether the land can be divided (“partition in kind”) or whether a sale is necessary, handle notice to all interested parties and lienholders, and allocate costs, liens, and proceeds. This article explains the typical process, what to expect, and practical tips to protect your interests. This is general information, not legal advice.

Detailed answer — How a partition action works in South Carolina

When two or more people own property together (for example, as tenants in common), any co-owner generally has the right to seek a court-ordered partition if the co-owners cannot agree about keeping or selling the property. In South Carolina, if mediation or negotiations fail, the usual next step is to file a civil lawsuit called an action for partition in county court or circuit court.

Who can file

Any record owner (co-tenant) of an interest in the real property can file. The person filing is the plaintiff; all other owners and any parties with recorded interests (mortgages, liens, judgment liens) must be named and given notice.

Filing the complaint and initial court steps

The plaintiff files a complaint for partition. The complaint usually describes the property, each owner’s claimed share, and asks the court to order partition by dividing the land or, if dividing is impractical or inequitable, ordering a sale. The court issues summons and directs service on all co-owners and interested parties. The defendants then file answers or counterclaims.

Determining whether division is possible: partition in kind vs. partition by sale

The court will consider whether the property can be fairly divided among owners (partition in kind). If the land can be physically divided without unfairly harming any owner’s interest, the court may order division and assign distinct portions to the owners. If division would be impractical, would materially damage value, or cannot be done equitably, the court is likely to order a sale of the whole property and divide proceeds among owners after liens and costs.

Appointment of commissioners or a referee

To carry out partition, South Carolina courts commonly appoint one or more commissioners (sometimes a referee) to survey, value, and recommend how the property should be divided or sold. These officers prepare reports for the court. The parties can usually examine the report and object to it, and the court will adopt or modify the recommendations.

Sale procedures

If the court orders a sale, sales may occur at public auction or by other methods the court approves. The sale proceeds first satisfy costs of the action and any court-ordered expenses, then pay valid liens (mortgages, tax liens). Remaining proceeds are distributed to co-owners according to their ownership shares. If the sale does not fully satisfy liens, creditors may pursue their claims as allowed under law. The court’s order will set out the distribution.

Interim relief the court can provide

While the partition action proceeds, a court can enter temporary orders to protect property values and co-owners’ rights. Typical interim orders include:

Appointment of a receiver to manage the property and collect rents and profits.
Orders for payment of ongoing expenses (taxes, insurance, mortgage payments) and allocation of those costs among co-owners.
Injunctions preventing a co-owner from making alterations, removing improvements, or selling the property outside the case.

Costs, fees, and likely timeline

Partition actions can be costly and take months to over a year depending on complexity: locating defendants, disputes over valuation, lien issues, and whether appeals occur. Costs typically include filing fees, commissions/referee fees, attorney fees, appraisal and survey fees, and sale costs. The court may order one side to pay some costs, but often costs are deducted from sale proceeds and shared according to ownership interests.

Appeals

Either side can appeal final court orders, which can extend the timeline. Pending an appeal, the property may remain subject to the court’s control and any injunctions or receivership already in place.

Relevant South Carolina resources

South Carolina provides online access to statutes and court resources. For the state code and statute research, use the South Carolina Legislature’s code site: https://www.scstatehouse.gov/code.php. For local court procedures, forms, and contact information, see the South Carolina Judicial Department: https://www.sccourts.org/. These sites can help you locate the applicable civil procedure rules and local forms for filing a partition action.

Practical examples (hypothetical scenarios)

Example A — Partition in kind: Two siblings own a 20-acre tract as tenants in common. A survey and report show the land divides cleanly into two 10-acre parcels of roughly equal value. The court orders partition in kind. Each sibling receives title to a separate 10-acre parcel, and costs are deducted from the final distribution.

Example B — Partition by sale: Three owners hold a single-family parcel containing one house. The court finds dividing the land impractical because of the single dwelling and infrastructure. The court orders a public sale. After payment of mortgage and sale costs, proceeds are divided according to ownership shares.

When a partition action may not be the best first step

Filing for partition is often a last resort. Consider alternatives first because litigation costs and time can erode value:

Buyout: One owner buys the other(s)’ share at an agreed value or after an appraisal.
Refinancing: One owner refinances to remove another co-owner where liens allow.
Settlement agreements: Split proceeds from a negotiated sale or create a management agreement covering use, expenses, and rents.

Helpful hints

Document ownership: Keep deeds, mortgage statements, and any co-ownership agreements handy before filing.
Get an appraisal and survey early: These help the court and commissioners determine whether division is fair or a sale is required.
Identify lienholders: Name all parties with recorded interests (mortgages, tax liens) in the complaint to avoid later disputes.
Consider temporary protections: Ask the court for receivership or injunctive relief if a co-owner is damaging property or refusing to pay taxes or mortgage payments.
Weigh costs against expected proceeds: If the property has low equity, litigation costs may consume most of the value—consider negotiation first.
Talk to a South Carolina real property attorney: A lawyer can review title, identify statutory issues, draft pleadings, and advise on likely outcomes in your county’s courts.
Prepare for possible appeals: Understand that even a clear court order can be delayed by appeals, so plan financially and practically for a longer timeline.

Next steps

If mediation fails and you are considering a partition action: gather ownership documents, get a current appraisal, identify all lienholders, and consult a South Carolina attorney experienced in real property litigation to review your options and help prepare the case. If you would like to explore alternatives first, consider proposing a buyout, a negotiated sale, or asking a neutral appraiser to value interests to facilitate settlement.

Disclaimer: This article is for general informational purposes only and is not legal advice. It does not create an attorney-client relationship. Laws vary and change; consult a licensed South Carolina attorney about your specific situation before taking legal action.