Can I force the sale of our jointly owned property even if my co-owner is behind on the mortgage? – South Carolina

Short Answer

Often, yes. In South Carolina, a co-owner who cannot agree with the other co-owner about what to do with jointly owned real estate can usually file a partition case asking the court to divide the property or order a sale and divide the proceeds. A co-owner’s mortgage delinquency does not automatically block a partition sale, but it can affect timing and how sale proceeds get paid out because liens and the mortgage must be addressed at closing.

Understanding the Problem

In South Carolina, when two or more people own the same piece of real estate, disagreements can arise about whether the property should be kept, rented, refinanced, or sold. The question is whether one co-owner can make the property be sold through a court process even if the other co-owner has fallen behind on the mortgage payments. The key decision point is whether the ownership arrangement allows a court-ordered partition (often a sale) and how the existing mortgage and any foreclosure risk fit into that process.

Apply the Law

South Carolina generally allows a co-owner to bring a partition action when co-owners cannot agree on the disposition of jointly owned real estate. Partition can be a physical division (rare for most residential property) or, more commonly, a court-ordered sale with the net proceeds divided among the co-owners according to their ownership interests. If the property qualifies as “heirs’ property,” South Carolina’s heirs’ property rules can change the sale process by favoring an open-market sale and adding court oversight designed to protect co-owners as a group. A mortgage delinquency does not eliminate the right to seek partition, but the mortgage lender’s rights and any foreclosure timeline can create urgent practical issues.

Key Requirements

Co-ownership interest exists: The person seeking the sale must have a present ownership interest (commonly as a tenant in common or joint tenant) in the real estate.
Property cannot be fairly divided in kind (in many cases): If splitting the land into separate parcels would be impractical or unfair, the court can order a sale and divide the proceeds instead of physically dividing the property.
Liens and secured debts must be handled: A mortgage, judgment lien, or other encumbrance generally must be paid, satisfied, or otherwise addressed from sale proceeds at closing before co-owners receive any distribution.

What the Statutes Say

S.C. Code Ann. § 15-61-400 (Sale of heirs’ property; open-market sale; sealed bids; auction) – If the court orders a sale of heirs’ property, the default method is an open-market sale with a broker, unless another method is better for the co-owners as a group.
S.C. Code Ann. § 15-39-630 (Where and by whom sales made) – Describes where judicial sales occur and which official conducts certain court-ordered sales, depending on the court and type of order.
S.C. Code Ann. § 15-61-30 (Partition against unknown heirs; escheated interest) – Allows partition proceedings to move forward in certain heirship situations without making the State a party, while protecting the handling of sale proceeds tied to that interest.

Analysis

Apply the Rule to the Facts: The facts describe jointly owned property and a co-owner who is behind on the mortgage. Joint ownership is the typical trigger for a partition case in South Carolina when co-owners cannot agree on a sale. The mortgage delinquency does not usually prevent filing; instead, it raises the risk that the lender may start or continue foreclosure while the partition case is pending, and it affects how the closing statement distributes sale proceeds (the mortgage and other liens generally get paid before any split to co-owners).

Process & Timing

Who files: A co-owner (cotenants include tenants in common and, in many situations, joint tenants). Where: Typically the South Carolina Court of Common Pleas in the county where the property is located. What: A partition complaint requesting partition in kind or, if not practical, partition by sale; if the property is heirs’ property, the pleadings should address that framework. When: There is no single universal “partition filing deadline,” but timing matters if a foreclosure is pending or threatened.
Case steps: The court determines the parties’ ownership interests, identifies whether the property is heirs’ property, and decides whether division in kind is feasible. If a sale is ordered for heirs’ property, the court generally uses an open-market sale process with a licensed broker unless another sale method better serves the co-owners as a group.
Sale and distribution: The court-approved sale closes, liens and sale costs are handled at closing, and the remaining net proceeds are distributed according to the ownership shares (subject to any court-ordered adjustments and valid claims).

Exceptions & Pitfalls

Foreclosure can overtake the partition case: A lender is not required to pause foreclosure just because co-owners are fighting about partition. If foreclosure is already filed, the strategy often changes because the lender’s rights come first.
Ownership type affects what happens at death: If the co-owners hold title as joint tenants with right of survivorship, a death can shift ownership outside probate, which can change who has standing to file and who must be named. South Carolina generally requires clear survivorship language to create that survivorship feature, and a joint tenant can usually transfer their interest in a way that severs survivorship.
“Heirs’ property” rules can change the sale method: When heirs’ property applies, the court’s process is more structured, and an open-market listing is often the default. Parties who assume a quick courthouse auction may be surprised by the added steps.
Liens reduce (or eliminate) proceeds: If the mortgage balance, late fees, and other liens exceed the sale price, there may be little or no net proceeds to divide, even if a sale is forced.
Missing parties and service problems: Partition cases can stall if all co-owners (including unknown heirs in some situations) are not properly addressed. South Carolina law has tools for certain unknown-heir situations, but the paperwork and notice steps still matter.

Conclusion

In South Carolina, a co-owner can often force a sale of jointly owned real estate through a partition action when the co-owners cannot agree, even if the other co-owner is behind on the mortgage. The mortgage delinquency usually affects payoff and timing, not the basic right to seek partition, because the mortgage and other liens must be handled from sale proceeds. The most important next step is to file a partition complaint in the Court of Common Pleas in the county where the property is located before a foreclosure timeline limits options.

Talk to a Probate Attorney

If a jointly owned property needs to be sold and a co-owner’s missed mortgage payments are creating conflict or foreclosure risk, an experienced probate attorney can help explain whether a partition case applies, whether the property may be treated as heirs’ property, and what timelines matter in the local court.

Disclaimer: This article provides general information about South Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed South Carolina attorney.