Co-Ownership of Real Property in Alabama: Rights, Duties, and Partition Actions

Co-ownership of real estate is a common legal arrangement in Alabama, whether established through a commercial investment, a deed to spouses, or the inheritance of family land. However, sharing title to property creates a specific set of legal rights and obligations between the owners.

When disputes arise regarding the management, use, or sale of the property, the specific type of co-ownership dictates the available legal remedies. The following overview outlines the statutory and common law framework governing co-ownership in Alabama.

I. Types of Co-Ownership

Alabama law recognizes two primary forms of concurrent ownership: Tenancy in Common and Joint Tenancy. The distinction largely centers on the right of survivorship—what happens to an owner’s interest upon their death.

Tenancy in Common A tenancy in common is the default form of co-ownership in Alabama. It is characterized by the following:

• No Right of Survivorship: Upon the death of a co-tenant, their interest passes to their heirs or devisees under their will, not to the remaining co-owners.
• Undivided Interest: Each owner holds a fractional share of the property, but all owners have the right to possess the entire estate.
• Alienability: A co-tenant may freely transfer, sell, or mortgage their specific fractional interest without the consent of the other owners.

Joint Tenancy (With Right of Survivorship) The distinguishing feature of a joint tenancy is the right of survivorship. When a joint tenant dies, their interest is extinguished, and the remaining tenants own the property in equal shares.

• Creation: Because Alabama law presumes a tenancy in common, a deed must explicitly state the intent to create a joint tenancy, typically using language such as “as joint tenants with right of survivorship.”
• The “Bernhard Window”: It is critical to review the date of the deed. Conveyances executed between July 15, 1965, and November 9, 1972, created a specific type of indestructible joint tenancy. Property held under these specific deeds often cannot be partitioned or sold without the mutual consent of all parties. Deeds created outside this window are generally subject to partition.

II. Rights and Duties of Co-Owners

Regardless of whether the property is held as a tenancy in common or a joint tenancy, the co-owners share certain rights and responsibilities regarding the maintenance and use of the land.

• Possession and Leasing: Every co-owner has the right to occupy the entire property. One owner cannot exclude another. A co-owner may lease their undivided interest to a third party; however, if they collect rent, they may be compelled to account for those profits and share them with the other co-owners.
• Improvements: Generally, a co-owner cannot unilaterally improve the property and demand immediate reimbursement from other owners. However, if the property is later partitioned or sold, the improving owner may be entitled to credit for the increase in value resulting from those improvements.
• Taxes and Encumbrances: Payments made to preserve the property, such as property taxes or mortgage payments, are considered beneficial to all. A co-owner who pays these expenses is generally entitled to contribution from the others and may secure this right through an equitable lien.

III. Termination of Co-Ownership: Partition

When co-owners can no longer agree on the disposition of the property, the relationship is typically terminated through a legal process known as partition. Circuit courts in Alabama have broad jurisdiction to settle these matters.

Partition in Kind vs. Sale for Division

• Partition in Kind: This is the physical division of the land into distinct parcels. The law favors this method when the land can be divided equitably.
• Sale for Division: If the property cannot be equitably divided (for example, a single-family residence or a small commercial lot), the court may order a public sale of the property and divide the proceeds among the owners. The party seeking the sale bears the burden of proving that physical division is not feasible.

IV. Heirs Property and Statutory Buyouts

Alabama has adopted specific statutes to address “Heirs Property”—property passed down through generations where ownership is fractured among family members.

The Uniform Partition of Heirs Property Act (AUHPA) Appling to actions filed after January 1, 2015, the AUHPA provides additional due process protections. It requires independent valuation of the property and prioritizes partition in kind to prevent the loss of family wealth.

The Statutory Right to Purchase Alabama law (Ala. Code § 35-6-100) provides a mechanism to prevent a forced public sale. If a co-owner files a lawsuit for a sale for division, the other defendants generally have a statutory right to purchase the plaintiff’s interest.

• Procedure: A notice of intent to purchase must be filed with the court at least 10 days prior to trial.
• Valuation: If the parties cannot agree on a price, the court will appoint appraisers to determine the value of the interest.

V. Adverse Possession Against Co-Owners

It is legally difficult for one co-owner to claim full ownership of a property through adverse possession against another co-owner. Because all cotenants have a right to possession, a co-owner living on the property is presumed to be doing so with permission.

To succeed in an adverse possession claim, the possessing owner must prove “ouster.” This requires a clear, unequivocal denial of the other owners’ rights. The burden of proof to establish ouster is significant under Alabama case law.

Conclusion

The rights associated with co-ownership are governed by a complex mix of statutes and common law precedents. Whether you are seeking to enforce your rights to a property, negotiate a buyout, or proceed with a partition action, it is advisable to seek legal counsel to navigate these proceedings.

If you have any questions about this article or your own situation, please give me a call or schedule a consultation today. You can also refer to my property page for more information.

Disclaimer: This article provides a general overview of Alabama property law and does not constitute legal advice or create an attorney-client relationship. You should consult an attorney regarding your specific legal situation.