Detailed Answer
This section explains how a co-owner can start a partition action in Virginia to divide or force the sale of real estate when owners cannot agree. This is a general explanation of Virginia procedure; it is not legal advice.
What a partition action does
A partition action asks the circuit court where the property is located to physically divide property (partition in kind) or to sell it and divide the proceeds (partition by sale). The court follows Virginia civil procedure and title law and will appoint officers (often commissioners) to value, divide, or sell the property if the owners cannot agree.
Governing law
Partition actions are governed by Virginia civil procedure and property law. See Virginia Code Title 8.01 (Civil Remedies and Procedure) for the statutory framework and local Circuit Court rules for filing procedures: Va. Code Title 8.01. For practical filing and court information, see the Virginia Judicial System circuit court pages: Virginia Circuit Courts.
Who can file
Any person who owns an undivided interest in real estate — typically a tenant in common or a joint tenant — can file a complaint for partition in the circuit court for the county or city where the property lies. Proper parties include all co-owners and persons with recorded interests (mortgagees, lienholders, tenants under lease, anyone with a recorded claim).
Step-by-step: How to start a partition action in Virginia
- Confirm ownership and collect documents. Gather the deed(s), title insurance policy (if any), mortgage(s), tax bills, leases, and any written agreements among owners. A recent title search or abstract helps identify all parties with recorded interests.
- Decide the relief requested. In your complaint you can ask for partition in kind (division of the land) or partition by sale. Courts favor dividing land in kind if a fair division is possible without prejudice to owners; otherwise they order sale.
- Prepare and file a complaint for partition in the appropriate Circuit Court. The complaint should describe the property, state each party’s asserted share, name all owners and lienholders, and request partition in kind or a sale and distribution of proceeds. File where the property is located. The clerk will accept the complaint, assign a case number, and collect fees.
- Serve all parties and record a lis pendens if available. Serve co-owners and recorded lienholders with process per Virginia rules. You (or your attorney) can file a notice of the pending action (lis pendens) in the land records to warn potential buyers that the title is subject to litigation.
- Court appointment of commissioners or other officers. If the court proceeds, it commonly appoints commissioners or referees to survey, value, and, if necessary, sell the property under court supervision. Commissioners report to the court with recommendations.
- Hearing, partition in kind or sale, and distribution. If the property can be equitably divided, the court will confirm the division and direct deeds to be prepared and recorded. If division is not practical or fair, the court will order a sale (often by public auction or court-supervised sale). After sale, the court orders payment of liens, costs, and the net distribution to owners according to their legal interests.
- Accounting and possible offsets. The court can order accounting for mortgage contributions, property taxes, rents collected, and necessary repairs or improvements, which can affect each owner’s share of the proceeds.
Practical and procedural points
- Filing location: The circuit court for the county or city where the property is located has jurisdiction.
- Notice and joinder: All persons with an interest in the land should be joined. Failure to join a necessary party can delay or invalidate the result.
- Lis pendens: Recording a notice of the pending action protects the dispute from subsequent purchasers who claim good title.
- Mortgages and liens: Liens on the property remain; they are paid from sale proceeds in priority order.
- Timing and cost: Partition cases often take months and sometimes longer. Costs include court fees, commissioners’ fees, sale expenses, and attorneys’ fees.
Hypothetical example
Three siblings own a beach house as tenants in common. Two want to sell; one wants to keep it. One sibling files a complaint for partition in the circuit court where the property is located asking for sale. The court appoints commissioners to value the property. The commissioners report that dividing the lot would be impractical. The court orders a public sale, pays off the mortgage and taxes from the proceeds, deducts costs and commissions, and distributes the net balance among the siblings according to their ownership shares.
When the court may order a buyout instead of sale
Sometimes a co-owner can offer to buy out the other owners’ interests before a sale. The court can approve a buyout if that resolves the dispute fairly. Settlement by agreement is usually faster and cheaper than a forced sale.
When to hire an attorney
Consider hiring a Virginia real estate litigation attorney if:
- Ownership or share percentages are contested;
- There are unresolved lien, mortgage, or title issues;
- You need guidance on how to plead the complaint, join parties, or protect your interests; or
- The case involves complex accounting for contributions, rents, or improvements.
Timeline and costs
There is no fixed timeline. Simple uncontested partitions may complete in a few months. Contested matters with discovery, valuation disputes, and appeals can take a year or more. Costs vary; expect court filing fees, notice and recording fees, commissioner or surveyor fees, sale costs, and attorney fees if you hire counsel.
Helpful Hints
- Gather title and deed records before filing. Know exactly who holds legal title and who has recorded interests.
- Try negotiation or mediation first. Courts encourage settlement. Mediation can preserve value and cut costs.
- File a lis pendens (notice of pendency) in the land records to protect against third-party buyers.
- Document contributions (mortgage payments, taxes, repairs, improvements) to support any accounting claim to offsets at distribution.
- Get a current professional appraisal or survey if division or valuation will be disputed.
- Check local circuit court rules and fees where the property is located; procedures and forms can vary by court.
- Consider whether a buyout offer can resolve the dispute quickly and at lower cost.
Resources
- Virginia Code (Title 8.01 — Civil Remedies and Procedure): https://law.lis.virginia.gov/vacode/title8.01/
- Virginia Judicial System — Circuit Courts: https://www.vacourts.gov/courts/circuit.html
Disclaimer: This article explains general Virginia procedure and is for educational purposes only. This is not legal advice. Laws change and every situation is unique. Consult a Virginia-licensed attorney to get legal advice tailored to your situation.