What happens if my co-owner is behind on the mortgage and property taxes but my name is still on the loan and deed? – South Carolina

Short Answer

In South Carolina, a person whose name remains on the mortgage loan can still be personally responsible to the lender, even if a co-owner lives in the home and misses payments. A person whose name remains on the deed also still owns an interest in the property and may file a partition action to ask the Court of Common Pleas to divide the property, approve a buyout, or order a sale. A partition case can address ownership and sale proceeds, but it does not remove a borrower from the loan unless the lender is paid, refinances, or releases that borrower.

Understanding the Problem

The issue in South Carolina is whether a co-owner who remains on both the deed and the mortgage can protect ownership rights and loan exposure when the other co-owner stays in the home, falls behind on payments, and refuses a refinance or transfer. The key decision point is whether the non-occupying co-owner can use a partition action to force a legal resolution of the shared property before missed mortgage payments, unpaid property taxes, foreclosure, or a tax sale create larger problems.

Apply the Law

South Carolina treats the deed and the loan as two different issues. The deed controls ownership. The loan controls personal responsibility to the lender. If both names are on the deed, both people generally have ownership interests. If both names are on the note or mortgage loan, the lender may look to both borrowers under the loan documents, regardless of which co-owner lives in the home or promised to make payments.

A partition action is the main court remedy when co-owners cannot agree what to do with jointly owned real estate. In South Carolina, partition cases are filed in the Court of Common Pleas in the county where the property is located. The court can divide the property in kind when fair, allot the property to one or more owners with payments to others, or order a sale and divide net proceeds according to the parties’ rights. For a deeper discussion of the mortgage side of this issue, see how an existing mortgage impacts a South Carolina partition case.

Key Requirements

Co-ownership: The person asking for partition must have a legal ownership interest, usually shown by the deed.
Shared property cannot be resolved by agreement: A partition action becomes useful when one co-owner refuses to sell, refinance, buy out the other owner, or allow a transfer.
Accounting for payments and charges: The court may consider mortgage payments, taxes, insurance, necessary expenses, possession, and sale costs when deciding how to divide value.
Mortgage and tax liens come first: A court-ordered sale usually must deal with valid liens before any owner receives net proceeds.
Lender consent remains separate: A partition order can transfer or sell ownership interests, but only the lender can release a borrower from personal loan liability unless the debt is paid or otherwise resolved.

What the Statutes Say

S.C. Code Ann. § 15-61-10 (Right to partition) – allows joint tenants and tenants in common to compel partition of South Carolina property.
S.C. Code Ann. § 15-61-50 (Court of Common Pleas jurisdiction) – gives the Court of Common Pleas authority to partition property in kind, by allotment, or by sale when needed.
S.C. Code Ann. § 15-61-25 (Co-owner purchase procedure) – gives nonpetitioning co-owners a chance to buy the petitioning owner’s interest, with notice generally due no later than 10 days before trial and payment due within 45 days after valuation is completed.
S.C. Code Ann. § 12-51-90 (Redemption after delinquent tax sale) – allows redemption of real property sold at a delinquent tax sale within 12 months by paying the required taxes, costs, and interest.
S.C. Code Ann. § 29-3-660 (Mortgage deficiency judgment) – allows a court in a foreclosure case to address remaining mortgage debt against people personally liable for the debt.

Analysis

Apply the Rule to the Facts: The former partner remains in the home, but the non-occupying co-owner is still on the deed and loan. That means the non-occupying co-owner may still own part of the property and may still face lender action if the mortgage goes unpaid. Because the occupying co-owner refuses to refinance or allow a transfer, a partition action may be the court process for forcing a buyout, sale, or other division of the property. Any unpaid mortgage, taxes, penalties, and necessary carrying costs should be addressed as part of the accounting and distribution of value.

If the occupying co-owner missed mortgage payments, the lender may report defaults, charge fees, accelerate the loan, or file foreclosure depending on the loan documents. If property taxes remain unpaid, the county tax collector may move toward a delinquent tax sale. These risks matter because a partition case does not automatically stop a lender or the tax collector from enforcing valid rights.

South Carolina partition practice often requires careful accounting. A co-owner who paid more than a fair share of necessary mortgage payments, taxes, insurance, or preservation expenses may ask for credit. A co-owner who lived in the property alone may face offset arguments if the facts support them. The court looks at fairness, proof of payments, the reason for each expense, and how the property was used.

Process & Timing

Who files: The co-owner seeking to end the shared ownership. Where: The Court of Common Pleas in the South Carolina county where the property is located. What: A summons, complaint or petition for partition, property description, ownership allegations, requested relief, and often a notice of pendency if title to the property is affected. When: As soon as missed mortgage payments or delinquent taxes threaten foreclosure, tax sale, or loss of equity.
Serve interested parties: The filing party must serve the other co-owner and usually name parties with recorded interests, such as a mortgage lender, when the requested relief affects title or sale proceeds. Service problems can slow the case and may affect whether the court can enter a binding order.
Value the property and address buyout rights: If a co-owner wants to buy out the partitioning owner, South Carolina law provides timing rules. A nonpetitioning co-owner generally must notify the court of purchase interest no later than 10 days before trial, and if valuation is completed under the statute, payment into court is generally due within 45 days after that valuation process.
Resolve liens and sale proceeds: If the court orders a sale, valid mortgage liens, taxes, sale expenses, and court-approved credits normally get addressed before any net proceeds are divided. If the sale does not satisfy the loan, personal responsibility may remain under the loan documents and foreclosure law.
Complete transfer or sale: The final result may be a deed transfer after a buyout, a court-approved sale, or an order dividing net proceeds. If the goal is to remove a borrower from the mortgage, the practical solution usually requires payoff, refinance, assumption approved by the lender, or written release by the lender. For more on that issue, see removing a co-owner from title during a refinance in South Carolina.

Exceptions & Pitfalls

Being off the deed is not the same as being off the loan: A deed transfer alone does not release a borrower from the mortgage loan. The lender must be paid, refinance, approve an assumption, or give a release.
Being out of the home does not end ownership duties: A co-owner may still need to act quickly if the mortgage or taxes are unpaid because the property and credit exposure may be at risk.
Waiting can reduce options: A pending foreclosure, delinquent tax sale, or growing arrears can consume equity and complicate a partition sale. See what happens if delinquent taxes trigger a tax sale before a partition sale.
Informal promises may not protect the non-occupying owner: A private agreement that one co-owner will pay the mortgage does not usually bind the lender unless the lender agreed to it.
Proof matters: Bank records, tax receipts, insurance invoices, repair records, mortgage statements, and written communications help the court evaluate credits, offsets, and reimbursement claims.
Service and lienholder issues can delay relief: A partition order may not fully solve the problem if necessary parties, recorded lienholders, or unknown ownership interests are not handled correctly.
Tax consequences may exist: A partition sale, buyout, forgiven debt, or transfer may have tax effects. A tax attorney or CPA should review those issues before signing a settlement or sale agreement.

Conclusion

In South Carolina, a co-owner who remains on the loan and deed may still have both ownership rights and loan exposure when the other co-owner falls behind. A partition action can ask the Court of Common Pleas to force a buyout, division, or sale and account for mortgage payments, taxes, and credits. The key next step is to file a partition action in the county where the property sits before foreclosure or tax sale deadlines reduce available options.

Talk to a Partition Action Attorney

If a former partner is staying in a jointly owned home, missing mortgage payments, or letting property taxes fall behind, our firm has experienced attorneys who can help explain partition options, timelines, lender issues, and court procedures under South Carolina law.

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.