What is A Partition Action?
Partition is the process by which property held by tenants in common is divided. As a practical matter, literal partition or division of the property is rarely ordered; instead, the court more often will direct a sale of the property and a division of the proceeds. The other co-owners could file an answer disputing a co-owner’s right to ask for partition. Unless all the parties agree to a private sale, any sale ordered by the court will be a public sale. If a public sale is ordered, the judgment will direct the sheriff of the particular county to sell the property, give a deed to the purchaser, and either distribute the money to the parties as specified in the judgment or to pay the proceeds to the Clerk of the Superior Court, there to await an order for distribution from the court. The sheriff subsequently reports on the sale to the court, and the sale is confirmed if the court is satisfied that the price is within the range established by two appraiser's reports.
A private sale is accomplished by a contract of sale being submitted for court approval, on notice to the other parties and supported by the affidavits of two independent appraisers. Objections will be successful only if a bona fide offer is produced, or if it can be demonstrated that the value of the property greatly exceeds the proposed contract price.
As for fees and costs, the costs of a partition action may be paid from the proceeds of the sale since the action is viewed as having benefited all of the co-tenants. It is within the discretion of the court to award fees upon a showing that the partition suit was not merely for the purpose of advancing the interests of the person filing the action.