GA Code § 44-6-166.1 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 6 - Estates|Article 7 - Tenancy in Common|Part 2 - Partition|Subpart 2 - Statutory Partition|§ 44-6-166.1. Partition When Physical Division of Property Is Inequitable

  As used in this Code section, the term:   "Party in interest" means any person, other than a petitioner, having an interest in property.   "Petitioner" means any person petitioning for partition of property.   "Property" means lands and tenements sought to be partitioned pursuant to this subpart.     Whenever an application is made for the partition of property and any of the parties in interest convinces the court that a fair and equitable division of the property cannot be made by means of metes and bounds because of improvements made thereon, because the premises are valuable for mining purposes or for the erection of mills or other machinery, or because the value of the entire property will be depreciated by the partition applied for, the court shall proceed pursuant to this Code section.   The court shall appoint three qualified persons to make appraisals of the property. The average of the three appraisals shall constitute the appraised price of the property for purposes of this Code section. Notice of the amount of the appraised price shall be served on the petitioners and all parties in interest within five days after the appraised price is established.   Within 15 days after the appraised price is established, upon request to the court and grant thereof, any petitioner may withdraw as petitioner in the partition action and become a party in interest and any party in interest may become a petitioner in the action. Any petitioner remaining as such after the fifteenth day may be paid, pursuant to this Code section, his respective share of the appraised price corresponding to his respective share of the property. This payment shall constitute complete satisfaction of all of that petitioner's claims to and interest in that property. If no petitioner remains in the partition action after that fifteenth day, the proceeding shall be dismissed, and the petitioners who have withdrawn shall be liable for the costs of the action, including but not limited to the appraisal costs.     No sooner than 16 days and no later than 90 days after the appraised price is established, the parties in interest shall tender to the court sufficient sums to pay to petitioners their shares of the appraised price, as determined by their respective shares in the property, or the property shall be subject to public sale pursuant to Code Section 44-6-167. If the property is subject to such public sale, the petitioner and the parties in interest shall be liable for appraisal costs under this Code section in proportion to their respective interests in the property.   Each party in interest may pay toward the amount required to purchase any petitioners' shares of the appraised price an amount in proportion to that party's share of the total shares of property of all parties in interest, unless one party in interest authorizes another party in interest to pay some or all of his proportionate share of the shares available for sale. The share of each party in interest in the property shall be increased by the share that party pays toward the purchase of petitioners' shares in the property.     Within 95 days after the appraised price is established, unless the property becomes subject to public sale pursuant to paragraph (1) of subsection (e) of this Code section, the petitioners shall execute title to the parties in interest for the property in return for payment to the petitioners, from sums tendered to court under subsection (e) of this Code section, of their respective shares of the appraised price. Petitioners and parties in interest shall be liable for costs of the sale and proceedings relating thereto under this Code section in proportion to their respective shares in the property prior to that sale.     (Code 1981, §44-6-166.1, enacted by Ga. L. 1983, p. 1182, § 1; Ga. L. 1985, p. 149, § 44.)   Law reviews.   - For annual survey of real property law, see 41 Mercer L. Rev. 317 (1989). For note, "The Georgia Condominium Act's Authorization of Private Takings: Revisiting Kelo and 'Bitter with the Sweet,"' see 55 Ga. L. Rev. 395 (2020).   JUDICIAL DECISIONS   Conditions necessary before statute applicable.    - Partition in kind is the rule and this statute constitutes the exceptions. Two concurring conditions are necessary before it will be applied: (1) the partition in kind cannot be made; and (2) the interest of the parties owning the land will be promoted. Anderson v. Anderson, 27 Ga. App. 513, 108 S.E. 907, cert. denied, 27 Ga. App. 835 (1921) (see O.C.G.A. § 44-6-166.1)   Provisions mandatory.    - First tenant in common was not entitled to bypass the provisions of O.C.G.A. § 44-6-166.1, which provided the method for partitioning property that could not be physically divided such as the first tenant in common and the second tenant in common's sign, as the provisions of that statute were mandatory and had to be followed. Caudell v. Toccoa Inn, Inc., 261 Ga. App. 209, 582 S.E.2d 180 (2003).    "Court," meaning the judge, shall determine whether partition may be had by metes and bounds. Rodgers v. Price, 105 Ga. 67, 31 S.E. 126 (1898).    When the only question before the court is whether or not a fair and equitable division of the land can be made by metes and bounds, the judge has the legal right to determine this question without the intervention of a jury. Jennings v. Jennings, 173 Ga. 428, 160 S.E. 405 (1931).    Requisite that court must look to interest of parties means interest of all parties; the fact that one of the parties to the application might be benefited would not justify the partition. Tucker v. Parks, 70 Ga. 414 (1883).   Petition for partition by metes and bounds sufficient.    - Partition of the proceeds of the sale of the lands and tenements is in all essential particulars a partition of the lands and tenements, and it is immaterial whether the applicant prays for a partition by sale or a partition by metes and bounds. In an application in either form and with either prayer, the issues are the same. Anderson v. Anderson, 27 Ga. App. 513, 108 S.E. 907, cert. denied, 27 Ga. App. 835 (1921).   Timberland with varying percentage interests.    - Court properly found that a fair and equitable division of the property could not be made by means of metes and bounds since the property consisted of 53 acres of timberland with no road frontage, the parties owned varying percentage interests of the land, the land was most suitable for timberland, and it was not feasible for a timber company to buy the smaller tracts for timber. Cheeves v. Lacksen, 273 Ga. 549, 544 S.E.2d 425 (2001).    Burden of proof is upon party asserting that equitable division of land cannot be made to affirmatively show this fact. When no evidence was introduced on the issue, and the judgment sustained the application for partition of the land in kind, the judgment will not be reversed on the ground that there was no evidence to show that the land was incapable of subdivision. Jennings v. Jennings, 173 Ga. 428, 160 S.E. 405 (1931).   Court order as to payment for property appealable.    - An order of the trial court providing that a party may tender the appropriate portion of the appraised price of the property to the court by a date certain or the property will be subject to public sale is a final judgment which may be appealed directly to the Supreme Court. Lassiter Properties, Inc. v. Gresham, 258 Ga. 500, 371 S.E.2d 650 (1988).   Availability of remedy of public sale.    - Even if a party in interest does not pursue the remedy under O.C.G.A. § 44-6-166.1, the petitioner may still seek a public sale under O.C.G.A. § 44-6-167 by convincing the court that a fair and equitable division of the property cannot be made by means of metes and bounds because of improvements on the property, because the premises are valuable for mining purposes or for the erection of mills or other machinery, or because the value of the entire property will be depreciated by the partition applied for. Stone v. Benton, 258 Ga. 539, 371 S.E.2d 864 (1988).   Withdrawal of petition for public sale.    - Under O.C.G.A. § 44-6-166.1, a public sale of property could only be ordered by the court if the party in interest failed to tender to the court an amount necessary to "buy out" the petitioner before 90 days after the appraised price had been established, but that provision did not apply when the partitioning action was dismissed for lack of a petitioner and, thus, the first tenant in common was not entitled to a public sale of the sign the first tenant in common owned with the second tenant in common as the first tenant in common had withdrawn the first tenant in common's petition for a public sale and dismissed the partitioning action. Caudell v. Toccoa Inn, Inc., 261 Ga. App. 209, 582 S.E.2d 180 (2003).    Costs of upkeep, improvements, and repair of the property were not considered "contributions" when dividing the proceeds of the sale of the property pursuant to a written agreement between the parties which stated that the property would be divided "to the extent of each party's contribution." Maree v. Phillips, 272 Ga. 52, 525 S.E.2d 94 (2000).   Partition prevented by parties' agreement.    - Partition of a property was improper as the parties' agreement constituted an implied waiver of the right of partition, and a right of first refusal alone would not have satisfied the contractual obligations of the corporation seeking partition. The corporation could not seek partition because such an action was in direct contravention of the corporation's contractual obligations to put forth aggressive and professional marketing efforts to protect the investor status of a partnership, and to refrain from "transferring ... or otherwise encumbering" the property. Mansour Props., L.L.C. v. I-85/Ga. 20 Ventures, Inc., 277 Ga. 632, 592 S.E.2d 836 (2004).   Sale can be ordered in a statutory partition for property that cannot be divided fairly by metes and bounds.    - In a statutory partition, a court may order the sale of property that cannot be fairly divided by metes and bounds. Pack v. Mahan, 294 Ga. 496, 755 S.E.2d 126 (2014).   Ordering sale was within court's authority.    - Under the statutes governing statutory partitioning, the notice of intention to seek partitioning was the only process necessary in order to bring a defendant into court to meet the application for partitioning, and a sale of the property was provided for when a fair and equitable division of the property was not able to have been made by means of metes and bounds; ordering the sale of the property was within the trial court's authority without the need for securing personal jurisdiction over defendant. Shields v. Gish, 280 Ga. 556, 629 S.E.2d 244 (2006).   Statutory partition more appropriate.    - Trial court erred by ordering the equitable partition sale of 3.503 acres of real property because the co-owner failed to show that the remedy at law of a statutory partition, pursuant to O.C.G.A. § 44-6-160 et seq., was insufficient or that peculiar circumstances rendered the equitable proceeding more suitable and just; and, in a statutory partition, a court may order the sale of property that cannot be fairly divided by metes and bounds. Pack v. Mahan, 294 Ga. 496, 755 S.E.2d 126 (2014).    Cited in Williams v. Conerly, 276 Ga. 651, 582 S.E.2d 1 (2003).