How can I stop occupants who aren’t paying the mortgage or taxes from living rent-free until the sale?: Practical steps under South Carolina law

Short Answer

A South Carolina co-owner generally cannot remove another co-owner simply because that person does not pay the mortgage or property taxes. The paying co-owner can file a partition action, request an accounting and credits for documented property expenses, and ask the court for temporary terms governing occupancy while the case proceeds. If the occupants have no ownership, lease, or permission from another co-owner, a separate possession remedy may be available.

Understanding the Problem

The issue is whether a South Carolina co-owner can require occupants to pay for continued use of jointly owned property, vacate the property, or account for mortgage and property-tax expenses while a partition sale remains pending. The answer turns primarily on whether each occupant owns an interest in the property or occupies it with a co-owner’s permission.

Apply the Law

South Carolina joint tenants and tenants in common may compel partition. The Court of Common Pleas in the county where the property lies can divide the property, allot it to one or more owners with an accounting, or order a sale when a fair physical division is not practical. Because each co-owner normally has a right to possess the whole property, nonpayment alone does not automatically make an occupying co-owner a tenant or permit a lockout.

Key Requirements

Confirm ownership and authority: Review the deed, probate records, leases, and written occupancy agreements to determine whether the occupants are co-owners, tenants, or guests of a co-owner.
Document carrying costs: Preserve mortgage statements, property-tax receipts, insurance bills, necessary repair invoices, and proof showing who made each payment. These records support the accounting requested in the partition case.
Request specific interim relief: Ask for enforceable terms addressing access, preservation of the property, showings, ongoing expenses, and any proposed occupancy payment or deposit. The court will decide whether the requested terms are equitable under the circumstances.
Pursue partition and sale: Request a sale if the property cannot be divided fairly. Liens, sale expenses, and court-approved adjustments are generally addressed before the remaining proceeds are distributed according to the parties’ rights.

What the Statutes Say

S.C. Code § 15-61-10 (Right to Partition) – permits joint tenants and tenants in common to compel partition and, upon a party’s motion or statements in the pleadings, requires a preliminary determination after filing of whether the property qualifies as heirs’ property.
S.C. Code § 15-61-50 (Partition Jurisdiction and Accounting) – gives the Court of Common Pleas authority to divide, allot, or sell co-owned property and account for the parties’ respective shares.
S.C. Code § 15-61-25 (Purchase by Nonpetitioning Co-Owners) – allows a nonpetitioning co-owner to pursue a court-supervised purchase and requires notice of that interest no later than ten days before trial.
S.C. Code § 15-61-390 (Heirs’ Property Factors) – directs the court, in an heirs’ property case, to consider each co-owner’s contributions to taxes, insurance, maintenance, upkeep, and improvements.
S.C. Code § 15-11-10 (Notice of Pendency) – permits a notice of pendency to be filed no more than twenty days before the complaint or at any time after filing.

Analysis

Apply the Rule to the Facts: If an occupant appears on the deed, that person’s ownership generally supplies a right of possession even when another co-owner pays the mortgage and taxes. The paying co-owner’s practical remedy is usually an accounting, requested expense credits, appropriate temporary relief, and completion of the partition process rather than self-help removal. If the occupant has no ownership and no valid permission, the ownership requirement changes, and a lawful possession proceeding may be considered.

An occupancy charge is not automatic merely because one co-owner lives at the property. Its availability can depend on an agreement, exclusion of another co-owner, collection of income, or other equitable facts. Evidence should include payment records, communications about access or payment, the condition of the property, and reliable information about reasonable rental value.

Process & Timing

Who files: A joint tenant or tenant in common. Where: The Clerk of Court for the South Carolina Court of Common Pleas in the county where the property is located. What: A summons and partition complaint identifying the property, ownership interests, liens, requested accounting, and requested sale or other division. When: A notice of pendency may be filed no more than twenty days before the complaint or at any time afterward.
Serve all co-owners and other necessary parties, then request temporary terms addressing preservation, access, sale preparation, and ongoing expenses. The hearing schedule varies by county and by whether ownership, valuation, or heirs’ property status is disputed.
Present the deed, payment history, lien information, and proposed accounting. The court may approve a buyout, divide or allot the property, or order a sale and later issue an order distributing net proceeds after approved liens, expenses, and adjustments.

For more detail about secured debt, see how a mortgage affects a South Carolina partition sale. Delinquent taxes may create a separate and urgent problem, as discussed in this overview of tax-sale risks during a partition case.

Exceptions & Pitfalls

Co-owner possession rights: Changing locks, shutting off utilities, removing belongings, or physically excluding an owner without an agreement or court order can create additional claims and delay the sale.
Permission from another owner: A non-owner occupant may claim authority from a co-owner. That issue should be resolved through written agreement or court process rather than self-help.
No automatic dollar-for-dollar credit: The court may examine whether a payment preserved the property, reduced secured debt, benefited all owners, or related primarily to one occupant’s use.
Incomplete accounting: Bank records and invoices should distinguish mortgage principal, interest, insurance, taxes, repairs, improvements, utilities, and personal expenses.
Heirs’ property procedures: Inherited family property may trigger special appraisal, notice, buyout, and open-market-sale procedures that can affect timing.
Sale access problems: Ask early for clear terms covering inspections, appraisals, repairs, photographs, and showings. An informal promise to cooperate may be difficult to enforce.

Conclusion

South Carolina law usually does not allow a co-owner to evict another co-owner solely for failing to pay the mortgage or property taxes. The practical remedy is a partition case seeking an accounting, documented expense credits, interim occupancy terms, and a sale when fair division is not possible. File a partition complaint with the Court of Common Pleas and any notice of pendency no more than twenty days before the complaint, preferably before foreclosure or tax-sale deadlines threaten the property.

Talk to a Partition Action Attorney

If occupants are using co-owned property without contributing to the mortgage, taxes, or sale process, our firm has experienced attorneys who can help clarify possession rights, document expenses, request interim relief, and move the South Carolina partition case toward resolution.

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.