Detailed answer: How to proceed with a partition action in Virginia
When one co-owner wants the family home sold and others do not, a partition action is the court process that can force sale and divide proceeds. In Virginia, partition actions are filed in the Circuit Court where the property is located and are equitable proceedings. This guide explains the usual steps, who must be involved, what the court will consider, and practical alternatives.
1. Who can bring a partition action?
Any person who holds an ownership interest in the real property — for example, an heir, devisee, or co-owner (tenant in common) — can ask the Circuit Court for partition. If the house is still part of your father’s probate estate, the personal representative (executor/administrator) may also need to be involved or may handle sale under probate authority. If title shows joint tenancy with right of survivorship, the surviving joint tenant(s) likely own the property outright and a partition action is unnecessary.
2. Basic documents and fact-finding you should do first
- Obtain the deed(s) to confirm how the property was held (joint tenancy, tenants in common, or solely by your father).
- Check for a will and open probate records (if your father died recently). See Virginia statutes on wills and estates at the Code of Virginia, Title 64.2: https://law.lis.virginia.gov/vacode/title64.2/
- Locate mortgage, lien, tax, and judgment information affecting the property.
- Identify all possible co-owners, heirs, and lienholders — they must be joined in the suit.
3. Where and how to file
File a civil partition action in the Circuit Court for the county or city where the property is located. The complaint (sometimes called a bill or petition for partition) must name all record owners and any parties with recorded interests (mortgagees, lienholders). The court will require formal service of process on each named defendant.
4. What the court will consider
The court considers whether the property can be fairly divided “in kind” (physically split) without material prejudice to the owners. If dividing is impracticable or would destroy value, the court generally orders partition by sale. The judge may:
- Order a partition in kind (rare for a single-family home unless the lot can be divided);
- Order sale and direct how the sale proceeds are distributed after mortgages, liens, taxes, and costs are paid;
- Appoint a commissioner, special master, or sheriff to carry out the division or sale and set terms (sale method, notice, bidding, etc.).
Virginia Circuit Courts apply equitable principles; courts prefer division in kind when feasible but will choose sale when necessary. For statutes and procedure on civil actions (including property actions) see Virginia Code Title 8.01: https://law.lis.virginia.gov/vacode/title8.01/
5. Typical timeline and steps after filing
- File complaint and pay filing fee. The court issues summonses for service.
- Serve all parties and lienholders. Defendants have time to respond.
- The court may schedule hearings to determine ownership interests, liens, valuation, and whether division in kind is possible.
- If sale ordered, the court sets terms and may appoint a commissioner to sell the property. Notice and marketing follow local rules and court instructions.
- Property is sold. Proceeds pay liens, costs, and the remainder is distributed to owners per their ownership shares or court decree.
6. Costs, fees, and likely outcomes
Costs include filing fees, process-server fees, attorney fees, appraisal or partition commissioner fees, and sale costs. Attorney fees can be significant in contested matters. The net proceeds are divided according to ownership shares after payment of mortgages, liens, taxes, and court-ordered costs. If you are an executor, the probate court may allow sale through the estate administration route instead — this can sometimes be quicker or more practical.
7. Practical alternatives to a contested partition
- Negotiate a buyout: one owner buys the others’ interests at an agreed price.
- Agree to a voluntary sale and split proceeds — less time and cost than court sale.
- Use mediation to reach compromise terms for buyout or sale.
- If property is in probate, ask the personal representative to sell under probate authority (often faster than partition).
8. Example (hypothetical)
Suppose there are three children listed as tenants in common, each owning a one-third interest after their father died intestate. Two children want to keep the house; one wants to cash out. If they cannot agree, the child who wants out can file a partition action in the Circuit Court where the house sits. The court will evaluate whether the lot can be divided. If not, the court will order a sale, appoint a commissioner to sell, then divide the net proceeds one-third each (after paying mortgage and costs).
9. What you should bring to an initial consultation with an attorney
- Deeds and title documents;
- Copy of will (if any) and probate filings;
- Mortgage and lien information;
- Contact information for co-owners and known heirs;
- Any written communications about sale offers or agreements among owners.
To learn more about court procedures and forms, contact the local Circuit Court clerk’s office or review the Virginia Code online: https://law.lis.virginia.gov/vacode/
10. When to get a lawyer
Get a lawyer if ownership is disputed, liens or bankruptcy may be involved, or if co-owners are uncooperative. An attorney will draft pleadings, ensure proper service, handle valuations and hearings, and protect your financial interests. If costs are a concern, ask about fee structures, mediation, or whether a probate sale could be less expensive.
Disclaimer: This article explains general Virginia procedures and is not legal advice. Laws change and every case is different. For advice specific to your situation consult a licensed Virginia attorney.
Helpful hints
- Confirm how title is held (deed language matters).
- If probate is open, discuss whether a probate sale is possible — it can be faster than partition.
- Collect clear documentation of ownership shares, debts on the property, and any previous agreements between the parties.
- Consider mediation before filing — it often saves time and money.
- Expect several months for a contested partition; uncontested or probate sales are usually quicker.
- Ask the court clerk about local partition procedures and forms for the specific Circuit Court.
- Be prepared for the court to appoint a commissioner or agent to manage sale logistics.