Partition Actions in South Carolina

• Jurisdiction: South Carolina,United States
• Citation: Vol. 27 No. 5 Pg. 22
• Pages: 22
• Publication year: 2016

Partition Actions in South Carolina No. Vol. 27 Issue 5 Pg. 18 South Carolina BAR Journal March, 2016

"Parting is Such Sweet Sorrow"

WT. Geddings Jr., Judge.

Introduction

There is an old adage that it is all fun and games until someone puts his eye out. In property ownership, there is a similar principle in play when dealing with real property owned by two or more parties. Everything is fine with multiple owners, but when it is no longer fine, it goes bad quickly and can become very complicated. Thankfully, the situation does not need to be as complicated as many laymen make it, and in South Carolina we have some very good guidance.

Methods of recording title

There are many ways that someone can own property. In the early times of our nation, it seemed that attorneys and landowners rejoiced in finding new methods of land ownership. In law school, every lawyer today teams of "fee tail, " "fee simple reversionary" and various methods of complicating the title to a piece of property. This article will not deal with those myriad types of title and will focus only on the circumstance when two or more people own a tract of land, with a primary focus on "Tenants in Common" (TIC) and "Joint Tenants with Right of Survivorship" (JTWRS), as well as the special circumstance created when spouses are the joint owners.

The basic difference, as taught in school, is that each TIC holds title to a pro-rata share of the property. Should a TIC die, that person's share descends to his or her estate and heirs. If property is titled as JTWRS, when an owner dies his or her share immediately goes to the other owner(s) without the need for an additional deed or other steps.

There are other significant differences.^[1] Our S.C. Supreme Court summarized the differences in Smith v. Cutler:

This Court recognizes that the two estates at issue have many similar characteristics. However, unlike a tenancy in common with a right of survivorship, a joint tenancy with a right of survivorship is capable of being defeated by the unilateral act of one joint tenant. See S.C. Code Ann. § 27-7-40(a) (v), (vii), and (viii) (depicting actions that can be taken by one joint tenant to effectively sever the joint tenancy). Further, property held in joint tenancy is subject to partition. S.C. Code Ann. § 15-61-10 (2005) (stating that all joint tenants may be compelled to partition). In contrast, a tenancy in common with a right of survivorship cannot be defeated by the a ct of one tenant absent the agreement of the other tenant.^[2]

Based upon that language, it is possible for the creation of an indestructible multiple owner title with right of survivorship between the owners. This would most commonly be seen between spouses, but it is possible that it could be applied to other situations. In order to...