Can We Move Forward With a Partition Case to Force the Sale of the House if the Other Side Keeps Delaying? – South Carolina

Short Answer

Yes, a South Carolina co-owner can generally pursue partition when the other co-owner fails to complete an agreed buyout. However, current ownership must be confirmed first. If an executed deed already transferred the departing owner’s interest, enforcing the signed settlement may be the proper remedy instead of partition.

Understanding the Problem

The issue is whether a South Carolina co-owner can ask the court to end joint ownership and order a sale after the other co-owner misses the agreed buyout payment or continues delaying the refinance. The answer turns on who currently owns the home, what the settlement requires, whether any deed was delivered or recorded, and whether the payment deadline has passed.

Apply the Law

South Carolina allows a joint tenant or tenant in common to compel partition. The action belongs in the Court of Common Pleas for the county where the house is located. The court may divide the property, allot it to one owner with a payment to the other, or order a sale when a fair physical division or allotment cannot be made without harming the parties’ interests. A single-family home usually cannot be divided into separate, usable parcels, but the court must make that determination.

Key Requirements

Current ownership interest: The person requesting partition must still hold a legal or equitable ownership interest in the house. The settlement, deed-delivery instructions, public records, and any escrow arrangement must be reviewed.
Right to end co-ownership: The owners remain unable to complete the agreed buyout or otherwise separate their interests. A co-owner generally does not have to remain in indefinite joint ownership merely because the other owner is seeking financing.
Basis for a sale: The court must find that dividing or allotting the house cannot be done fairly and impartially without injury to the parties. If the other owner receives a statutory opportunity to buy the filing owner’s share, payment must be made within the court-controlled period.

What the Statutes Say

S.C. Code Ann. § 15-61-10 (Right to Compel Partition) – Joint tenants and tenants in common may compel severance and partition.
S.C. Code Ann. § 15-61-50 (Partition Jurisdiction and Sale) – The Court of Common Pleas may order division, allotment, or a sale when fair division or allotment is not possible.
S.C. Code Ann. § 15-61-25 (Co-Owner Buyout Procedure) – A nonfiling co-owner may elect to purchase the filing owner’s interest and generally has 45 days after valuation to pay the purchase price into court.
S.C. Code Ann. § 15-7-10 (County for a Partition Action) – A partition case must be tried in the county where the property, or part of it, is located.
S.C. Code Ann. § 32-3-10 (Signed Writing for Land Agreements) – An agreement concerning an interest in land generally must be written and signed by the party against whom enforcement is sought.
S.C. Code Ann. § 30-7-10 (Recording Real Estate Instruments) – Recording protects real estate instruments against later purchasers and creditors without notice.

Analysis

Apply the Rule to the Facts: The signed settlement and executed deeds indicate that the owners intended to resolve their joint ownership through a buyout. The missing payment and continuing refinance delay support court action if the filing party still owns an interest and the agreement’s payment deadline or required cure period has passed. Because the property is a house, a sale may be appropriate if it cannot be divided fairly.

The first question is not whether the bank needs more time. It is whether the settlement made financing the other co-owner’s responsibility and whether payment was due by a definite date. Unless the agreement provides otherwise, difficulty obtaining a loan does not itself complete the required payment or transfer.

The executed deeds require careful review. If a deed was signed but held in escrow until payment, the original co-ownership may remain in place. If the deed was delivered or recorded and transferred the filing party’s entire interest, that party may need to enforce the settlement and recover the unpaid amount rather than seek partition. More information about failed financing in this setting appears in this discussion of what happens when a co-owner cannot finance a property buyout.

Process & Timing

Who files: The co-owner seeking to end joint ownership. Where: The South Carolina Court of Common Pleas in the county where the home is located. What: A summons and complaint requesting partition, a determination of ownership interests, appropriate accounting, and sale if fair division or allotment is not possible. A notice of lis pendens may also be filed with the county clerk under S.C. Code Ann. § 15-11-10. When: After the contractual payment deadline and any required notice or cure period have expired.
Title and valuation: The court identifies the owners and liens, determines each ownership share, and addresses any proper accounting claims. If the nonfiling co-owner elects the statutory buyout and the parties cannot agree on value, the court may approve an appraisal. An objection to the appraisal generally must be filed within 10 days after the appraisal report is filed.
Buyout or sale: After valuation, the purchasing co-owner generally has 45 days to pay the court-approved purchase price into court. Failure to pay allows the court to proceed under its partition-sale procedures. Scheduling varies by county and contested cases can take several months or longer.

Exceptions & Pitfalls

The deed may have changed ownership: Signing a deed, delivering it, placing it in escrow, and recording it can have different consequences. Filing partition without confirming present title can lead to the wrong claim or remedy.
The settlement may control the next step: It may require written notice, an opportunity to cure, mediation, enforcement in an existing case, or return of escrowed documents before a new partition action.
A forced sale is not automatic: The court may consider division or allotment before ordering a sale. The other co-owner also has a statutory opportunity to purchase the filing owner’s interest.
Heirs’ property follows additional rules: If the home qualifies as heirs’ property, the court must use South Carolina’s separate valuation, notice, and buyout process. Under that process, the court sets a payment date no sooner than 60 days after the required notice.
All interested parties matter: Owners, mortgage holders, lienholders, and others whose recorded interests may be affected should be identified and properly joined or notified. Defective service can delay the case.
Expenses may affect distribution: Mortgage payments, insurance, necessary repairs, occupancy, and other property expenses may become accounting issues. Records should be preserved rather than assuming the sale proceeds will be divided without adjustments.

Conclusion

A South Carolina partition case can move forward when a co-owner fails to complete an agreed buyout, provided the filing party still owns an interest and any settlement notice or cure period has expired. A sale may follow if the house cannot be divided or allotted fairly, although the other owner may receive a 45-day court-supervised buyout period after valuation. The next step is to have counsel review the settlement, deed status, title records, and payment deadline before filing in the proper Court of Common Pleas.

Talk to a Partition Action Attorney

If a co-owner is delaying an agreed buyout or refinance, experienced South Carolina attorneys can evaluate the settlement and deeds, confirm the current ownership, and explain whether partition or settlement enforcement offers the proper path forward.

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.