Partition Action Complaint - South Carolina

STATE OF SOUTH CAROLINA

IN THE COURT OF COMMON PLEAS

COUNTY OF [____]      [____] JUDICIAL CIRCUIT

Case No.: 20[__]-CP-[__]-[______]

SUMMONS

TO THE DEFENDANTS ABOVE-NAMED:

YOU ARE HEREBY SUMMONED and required to answer the Complaint herein, a copy of which is herewith served upon you, and to serve a copy of your Answer upon the undersigned attorney for Plaintiff at the address shown below within thirty (30) days after service hereof upon you, exclusive of the day of such service. If you fail to do so, judgment by default will be rendered against you for the relief demanded in the Complaint.

Dated: [__/__/____]

[________________________________]
[Attorney Name], SC Bar No. [______]
[Firm Name]
[Address] · [Phone] · [Email]
Attorney for Plaintiff

VERIFIED COMPLAINT FOR PARTITION (S.C. Code § 15-61-10 et seq.)

Plaintiff, [PLAINTIFF FULL NAME], complaining of the Defendants above-named, alleges and says:

I. PARTIES, JURISDICTION, AND VENUE

1. Plaintiff is [a resident of [____] County, South Carolina / a corporation organized under the laws of [____]], with an address of [________________________________].

2. Defendant [DEFENDANT 1] is, upon information and belief, [an individual whose last-known address is / a corporation with its principal place of business at] [________________________________], and is a cotenant of the Subject Property.

3. Defendant [DEFENDANT 2] is, upon information and belief, [________________________________].

4. Defendants identified as "ALL OTHER PERSONS UNKNOWN CLAIMING ANY RIGHT, TITLE, ESTATE, INTEREST IN, OR LIEN UPON THE REAL ESTATE DESCRIBED IN THE COMPLAINT HEREIN" include all unknown heirs, devisees, distributees, successors, assigns, and lienholders. No severance or partition shall prejudice any person not a party (S.C. Code § 15-61-20).

5. This Court has jurisdiction over partition of real property pursuant to S.C. Code § 15-61-50.

6. Venue is proper in [____] County pursuant to S.C. Code § 15-7-10, as the Subject Property is situated in [____] County, South Carolina.

II. THE SUBJECT REAL PROPERTY

7. The real property at issue (the "Subject Property") is located in [____] County, South Carolina, and is described as follows:

Legal Description:
[________________________________________________________________
________________________________________________________________
________________________________________________________________]

TMS / Parcel No.: [____________]
Street Address (reference only): [________________________________]
Plat reference: Plat Book [______], Page [______]

III. COTENANCY AND RESPECTIVE INTERESTS

8. Plaintiff and the Defendants hold the Subject Property as [tenants in common / joint tenants]. The respective interests, so far as known, are:

9. Plaintiff acquired Plaintiff's undivided [____] interest by [Title to Real Estate / Warranty Deed / Quitclaim Deed / Deed of Distribution / devise / intestate succession] dated [__/__/____], recorded in the office of the Register of Deeds for [____] County on [__/__/____] in Deed Book [____], Page [____] (Instrument No. [______]).

IV. ENTITLEMENT TO PARTITION

10. Plaintiff incorporates the preceding paragraphs by reference.

11. As a cotenant holding an undivided interest, Plaintiff is compellable to and entitled to compel severance and partition of the Subject Property pursuant to S.C. Code § 15-61-10(A).

V. PRELIMINARY DETERMINATION — HEIRS' PROPERTY (S.C. Code §§ 15-61-10(B), 15-61-330)

12. Plaintiff incorporates the preceding paragraphs by reference.

13. Pursuant to S.C. Code § 15-61-10(B), the Court must determine, at a preliminary hearing after the filing of this action, whether the Subject Property is "heirs' property." If the Court determines the Subject Property is heirs' property, it must be partitioned under the Clementa C. Pinckney Uniform Partition of Heirs' Property Act (Article 3, S.C. Code § 15-61-310 et seq.) unless all cotenants otherwise agree in a record.

14. Heirs'-property status (check one):

☐ The Subject Property is heirs' property within the meaning of S.C. Code § 15-61-320, in that: (i) there is no agreement in a record binding all cotenants governing partition; (ii) one or more cotenants acquired title from a relative; and (iii) the applicable familial-interest threshold is met. The SECOND CAUSE OF ACTION (Article 3) applies.

☐ The Subject Property is not heirs' property, and partition proceeds under Article 1 (FIRST CAUSE OF ACTION).

VI. FIRST CAUSE OF ACTION — PARTITION UNDER ARTICLE 1 (S.C. Code §§ 15-61-50, 15-61-100)

15. Plaintiff incorporates the preceding paragraphs by reference.

16. The Court of Common Pleas has jurisdiction to partition the Subject Property in kind, by allotment, or by sale pursuant to S.C. Code § 15-61-50. A sale may be ordered upon testimony taken, without a writ in partition (S.C. Code § 15-61-100).

17. ☐ Partition in kind. The Subject Property can be fairly and equitably divided among the parties according to their respective interests.

18. ☐ Partition by allotment. The Subject Property should be allotted to one or more cotenants who shall compensate the other cotenants for their respective shares.

19. ☐ Partition by sale. The Subject Property cannot be fairly divided without prejudice to the owners; it should be sold and the proceeds divided according to the respective interests. Plaintiff acknowledges the right of first refusal/buyout afforded nonpetitioning cotenants under S.C. Code § 15-61-25.

VII. SECOND CAUSE OF ACTION (HEIRS' PROPERTY) — CLEMENTA C. PINCKNEY UNIFORM PARTITION OF HEIRS' PROPERTY ACT (S.C. Code § 15-61-310 et seq.)

20. Plaintiff incorporates the preceding paragraphs by reference and pleads this cause of action in the alternative, to apply if the Court determines the Subject Property is heirs' property (S.C. Code §§ 15-61-330).

21. Notice. Service of the pleading and any notice by publication shall comply with S.C. Code § 15-61-340, including posting of a conspicuous sign on the Subject Property where notice by publication is sought.

22. Determination of value. The Court shall determine the fair market value of the Subject Property by ordering an independent appraisal, unless the cotenants agree to the value or another method, or the cost of an appraisal is unwarranted (S.C. Code § 15-61-360).

23. Cotenant buyout. If any cotenant has requested partition by sale, after the determination of value the Court shall give the other cotenants the opportunity to buy all of the interests of the cotenants that requested partition by sale, on the notice, election, and payment timelines set forth in S.C. Code § 15-61-370.

24. Partition in kind or by allotment preferred. If all interests of the cotenants that requested partition by sale are not bought out, or a cotenant remains who requested partition in kind, the Court shall order partition in kind unless it finds, after weighing the factors in S.C. Code § 15-61-390, that partition in kind would result in manifest prejudice or manifest injury to the cotenants as a group (S.C. Code §§ 15-61-380, 15-61-390).

25. Sale on the open market. If the Court orders a sale of heirs' property, the sale shall be an open-market sale through a court-appointed broker, unless the Court finds a sale by sealed bids or auction would be more economically advantageous and in the best interest of the cotenants as a group (S.C. Code §§ 15-61-400, 15-61-410).

VIII. ACCOUNTING AND EQUITABLE ADJUSTMENTS (OWELTY)

26. Plaintiff incorporates the preceding paragraphs by reference.

27. An accounting is necessary to adjust the equities among the cotenants. Plaintiff requests that, in fixing the parties' respective shares, any allotment, owelty, or distribution of sale proceeds, the Court credit or charge each cotenant for the following, as the proof may show:

☐ Sums paid for the purchase price, down payment, and mortgage principal and interest beyond a cotenant's proportionate share.
☐ Sums paid for ad valorem property taxes, insurance, and assessments.
☐ The reasonable cost of necessary repairs and value-enhancing improvements.
☐ Rents, profits, and income received by a cotenant from the Subject Property.
☐ The reasonable rental value of exclusive use / occupancy where a cotenant has ousted or excluded another cotenant.
☐ Waste, damage, or diminution in value caused by a cotenant.
☐ Owelty to equalize an in-kind partition or allotment that cannot be made in exact proportion.
☐ Other: [________________________________].

IX. ATTORNEYS' FEES AND COSTS (S.C. Code § 15-61-110)

28. Plaintiff requests that the costs of this action, including reasonable attorneys' fees, appraisal, broker, and sale expenses, be apportioned among the parties in proportion to their respective interests as the Court deems equitable, pursuant to S.C. Code § 15-61-110.

X. PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment as follows:

A. Determining and adjudging the respective undivided interests of Plaintiff and each Defendant in the Subject Property;

B. Determining, at a preliminary hearing under S.C. Code § 15-61-10(B), whether the Subject Property is heirs' property, and applying Article 3 (§ 15-61-310 et seq.) if it is, unless all cotenants agree otherwise in a record;

C. Ordering partition of the Subject Property in kind or by allotment, or, if it cannot be fairly divided without manifest prejudice or injury, ordering a sale (open-market sale for heirs' property) and division of the proceeds according to the parties' respective interests (S.C. Code §§ 15-61-50, 15-61-380, 15-61-400);

D. Affording nonpetitioning cotenants the right of first refusal / buyout under S.C. Code §§ 15-61-25 and 15-61-370;

E. Taking an accounting among the cotenants and charging or crediting each share for contributions, rents, ouster, waste, and owelty as set forth above;

F. Referring this action to the Master-in-Equity for [____] County pursuant to SCRCP 53 for further proceedings and entry of a final order;

G. Awarding reasonable attorneys' fees and costs apportioned among the parties pursuant to S.C. Code § 15-61-110; and

H. Granting such other and further relief as this Court deems just and equitable.

Dated: [__/__/____]

[________________________________]
[Attorney Name], SC Bar No. [______]
[Firm Name]
[Address] · [Phone] · [Email]
Attorney for Plaintiff

VERIFICATION

STATE OF SOUTH CAROLINA )
                          ) ss.
COUNTY OF [____] )

PERSONALLY APPEARED before me [PLAINTIFF FULL NAME], who, being duly sworn, deposes and says: I am the Plaintiff in the foregoing action; I have read the foregoing Complaint for Partition and know the contents thereof; the same is true of my own knowledge, except as to those matters stated on information and belief, and as to those matters I believe them to be true.

[________________________________]
[Plaintiff Signature]

SWORN to and subscribed before me this [____] day of [__________], 20[____].

[________________________________]
Notary Public for South Carolina
My commission expires: [__/__/____]

[NOTARY SEAL]

NOTICE OF LIS PENDENS

(S.C. Code § 15-11-10)

NOTICE IS HEREBY GIVEN, pursuant to S.C. Code § 15-11-10, that an action for partition has been commenced and is now pending in the Court of Common Pleas for [____] County, South Carolina, Case No. [____________], entitled [PLAINTIFF NAME], Plaintiff, vs. [DEFENDANT NAMES], et al., Defendants.

OBJECT OF THE ACTION: To partition the real property described below pursuant to S.C. Code § 15-61-10 et seq.

REAL PROPERTY AFFECTED (located in [____] County, South Carolina):

[INSERT FULL LEGAL DESCRIPTION]

TMS / Parcel No.: [____________]

Dated: [__/__/____]

[________________________________]
[Attorney Name], SC Bar No. [______] — Attorney for Plaintiff
[Firm Name] · [Address] · [Phone] · [Email]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____] a true and correct copy of the foregoing Verified Complaint for Partition and Summons was served upon the following by the method indicated:

[________________________________]
[Attorney Name], SC Bar No. [______]
Attorney for Plaintiff

Sources and References

• S.C. Code § 15-61-10 et seq. — Partition (Title 15, Chapter 61) (https://www.scstatehouse.gov/code/t15c061.php)
• S.C. Code § 15-61-10(B) — Preliminary determination whether property is heirs' property (2016 Act No. 153, eff. Jan. 1, 2017)
• S.C. Code § 15-61-50 — Court of Common Pleas jurisdiction; partition in kind or by sale
• S.C. Code § 15-61-110 — Attorneys' fees
• S.C. Code §§ 15-61-310 to 15-61-420 — Clementa C. Pinckney Uniform Partition of Heirs' Property Act
• S.C. Code § 15-61-360 (value/appraisal); § 15-61-370 (cotenant buyout); § 15-61-380 (in kind or allotment); § 15-61-390 (manifest prejudice factors); § 15-61-400 (open-market sale)
• SCRCP Rule 53 — Reference to Master-in-Equity
• UPHPA status (South Carolina): ENACTED. South Carolina adopted the Uniform Partition of Heirs Property Act as the "Clementa C. Pinckney Uniform Partition of Heirs' Property Act," Article 3, Chapter 61, Title 15 (S.C. Code §§ 15-61-310 to 15-61-420), effective January 1, 2017, applicable to partition actions filed on or after that date.

Disclaimer: This template does not constitute legal advice. South Carolina partition actions require a preliminary heirs'-property determination under § 15-61-10(B), are filed in the Court of Common Pleas, and are typically referred to a Master-in-Equity. Engage a licensed South Carolina attorney and obtain a title abstract before filing.