How to File a Partition Action in Virginia to Force Sale or Arrange a Buyout

Short answer: In Virginia a co-owner (including an heir or person who inherited an interest) can ask the circuit court where the real property sits to divide co-owned real estate through a partition action. The court will try to divide the land in kind when practical. If division in kind is not practical, the court can order a judicial sale and distribute the net proceeds to co-owners according to their legal shares. A buyout is possible if the parties agree or if a co-owner purchases the property at a court-ordered sale.

What a partition action is (plain language)

A partition action is a civil lawsuit filed in the Virginia circuit court to end co-ownership of real property. People who commonly file partition actions are co-owners who cannot agree on continued joint ownership—siblings who inherited a house, for example, when one wants to keep the house and another wants cash. The court can either physically divide the property (partition in kind) or order a sale and split the proceeds (partition by sale).

Primary legal authority

Partition actions in Virginia are governed by the state’s civil procedure and property law found in Title 8.01 of the Virginia Code and related rules and case law. For the statutory text and related provisions, see the Virginia Code Title 8.01 (Civil Remedies and Procedure): https://law.lis.virginia.gov/vacode/title8.01/. You can also search the code for terms like “partition” on the Virginia Legislative Information System: https://law.lis.virginia.gov/.

Who may bring a partition action

• Any co-owner of real property (including tenants in common and some joint owners) may file.
• If the ownership interest passed through probate, the executor or administrator of the estate may file to clear title or to sell estate property—but probate rules also matter.
• If title includes survivorship language (joint tenancy with right of survivorship), the surviving joint owner may already hold full title and a partition action may be unnecessary.

Typical step-by-step process in Virginia

1. Confirm ownership and parties. Collect deeds, wills, death certificates (if needed), and a current title report or search. Identify every person with an ownership interest or recorded lien. All co-owners and lienholders are necessary parties to a partition suit.
2. Choose venue and prepare the complaint. File in the circuit court for the city or county where the property is located. The complaint for partition describes the property (legal description), each party’s claimed share, the relief requested (partition in kind or sale), and facts supporting a partition.
3. File and serve. Pay filing fees and serve the complaint and summons on all defendants (co-owners, lienholders, known successors). Proper notice is essential; if a defendant cannot be found, the court can allow alternative notice methods.
4. Answer, defaults, and preliminary motions. Defendants have an opportunity to answer. If someone does not answer, the plaintiff may seek a default judgment. Either side can file motions—e.g., to join missing parties or to stay the case for settlement efforts.
5. Evidence, valuation, and commissioners. Courts often appoint a commissioner, surveyor, or auditor to inspect and value the land, report on whether physical division is feasible, and recommend how to divide or sell the property.
6. Court decision: partition in kind or sale. The court will order partition in kind if it is practical and fair. If the court finds division would be inequitable or impossible, it will order a judicial sale and direct how proceeds should be distributed after liens, taxes, and costs are paid.
7. Sale and distribution. If the court orders a sale, it will appoint someone to sell the property (public auction or private sale under court supervision). After the sale and payment of debts, the clerk disburses the net proceeds to owners according to their shares.
8. Buyout option. A buyout can happen by agreement at any time: one co-owner pays the other(s) a negotiated price (usually based on appraisal). If you want to force a buyout by asking the court to award the property to a co-owner for compensation rather than sale, the court usually follows the same valuation procedure; courts generally do not force one co-owner to retain title without compensation to other co-owners.

How courts decide between division or sale

The court looks at practical and equitable factors: whether the land can be divided without unfairly reducing value, whether buildings and improvements make physical division impractical, the owners’ relative shares, and the rights of lienholders. If land can be fairly split, the court prefers partition in kind. If not, the court orders sale and distribution of the proceeds.

Practical documents and information to gather before filing

• Deeds and legal description of the property
• Mortgage(s) and lien documentation
• Recent property tax bills and assessments
• Title report or abstract, if available
• Any written agreements among co-owners or estate documents (wills, trust documents)
• Current contact information for all co-owners and likely heirs
• Independent appraisal or broker price opinion (useful evidence)

Costs, timing, and risks

• Litigation costs: filing fees, service fees, commissioner or appraiser fees, attorney fees, and sale costs (advertising, auctioneer).
• Sale risk: a court-ordered sale may fetch less than a negotiated private sale.
• Liens and mortgages: mortgages and tax liens typically get paid from the proceeds before distribution.
• Time: partition cases can take months to more than a year, depending on complexity and whether the case settles.

When a buyout is the best route

A buyout often reduces cost and time. To pursue a buyout:

• Obtain a current market appraisal or broker price opinion.
• Negotiate a price that reflects each co-owner’s share, outstanding mortgage, and closing costs.
• Document the agreement in writing and record the deed after closing.

Special situations to watch for

• If one parent is still alive and their name is on the deed, you must consider their rights. You cannot force sale of property that you do not legally co-own.
• If title includes joint tenancy with right of survivorship, surviving joint owners generally take full title on a death and a partition lawsuit may not apply.
• If the property is part of a decedent’s probate estate, the executor or administrator may need court approval before selling estate property; coordinate with probate counsel.
• If one co-owner occupies the property, the court may order an accounting for rents and profits or award credits on distribution.

Helpful links and resources

• Virginia Code, Title 8.01 (Civil Remedies and Procedure): https://law.lis.virginia.gov/vacode/title8.01/
• Virginia Judicial System — Circuit Court forms and information: https://www.vacourts.gov/forms/circuit/index.html
• Search the Virginia Code (Legislative Information System): https://law.lis.virginia.gov/

Helpful hints

• Get a current appraisal before threats of litigation — an objective number helps negotiations.
• Try mediation first. Courts encourage settlement and mediation can save money and family relationships.
• Confirm whether title is tenancy in common or joint tenancy; the difference can decide who actually owns the property after a death.
• Check for mortgages and tax liens early; these affect the proceeds and order of pay-out.
• Keep careful records of communication and expenses related to the property; the court may credit expenses and improvements.
• Consider tax consequences (capital gains, basis). A clean buyout and deed transfer with proper tax planning can reduce future problems.
• Expect costs. Even a “successful” partition by sale reduces each owner’s net proceeds by fees and expenses.

When to talk to an attorney

Consider hiring a lawyer if the matter involves contested title, complex liens, active probate administration, occupancy disputes, or large value property. A lawyer can prepare a correct complaint, ensure correct parties are joined, handle service on hard-to-find co-owners, and argue for the most favorable remedy (division or sale) in court.

Disclaimer: This article is for general information only and does not create an attorney-client relationship. It is not legal advice. Laws change and the information here may not reflect the most recent law or procedure. For legal advice tailored to your specific situation, contact a licensed Virginia attorney.