Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for advice tailored to your situation.
Detailed Answer
In Virginia, a partition action lets co-owners divide or sell real property when they cannot agree on use or ownership. You can either initiate a partition or consent to one before a court appoints a commissioner. Below are the typical steps under Virginia law.
1. Initiating a Partition Action
- Prepare a Bill of Complaint. Draft a complaint that names all co-owners, describes the property with a legal description, and states the relief sought. See Va. Code § 8.01-659.
- File in the Proper Circuit Court. Submit your complaint and pay filing fees at the clerk’s office in the jurisdiction where the property lies.
- Serve Process on Co-Owners. Arrange for a sheriff or private process server to deliver the summons and complaint to every co-owner. Proper service ensures the court can exercise jurisdiction.
2. Consenting to a Partition Action
- Draft a Joint Petition or Written Consent. If all owners agree, prepare a joint petition or signed consent that outlines whether you seek partition in kind (physical division) or by sale.
- File the Consent with the Court. Submit the consent documents and request the court to appoint a commissioner. The court typically accepts unanimous consents and moves forward more quickly.
3. Court Appointment of a Commissioner
Once the court has a pending action or consent, it appoints a neutral third party to handle the details:
- Appointment and Oath. Under Va. Code § 8.01-660, the court selects a qualified commissioner who must take an oath to act impartially.
- Notice of Appointment. The clerk sends all parties a copy of the commission order and relevant deadlines.
4. Duties of the Commissioner
The commissioner follows statutory guidelines to divide or sell the property:
- Inspection and Appraisal. The commissioner surveys the property, may hire an appraiser, and prepares a written report.
- Sale Process (if by sale). For a sale, the commissioner advertises the property and conducts a public auction per Va. Code § 8.01-661.
- Report and Account. After completing the assignment or sale, the commissioner files a report and accounting with the court under Va. Code § 8.01-662, detailing proceeds and proposed distribution.
5. Court Confirmation and Distribution
- Exceptions and Hearings. Parties have a window to file exceptions to the commissioner’s report. The court schedules a hearing if needed.
- Final Order. The court issues a confirmation order approving the division or sale and directs the clerk to distribute funds or convey title.
- Distribution. The clerk disburses sale proceeds or delivers deeds per the court’s order, ending the partition process.
Helpful Hints
- Engage a real estate attorney early to draft precise pleadings.
- Gather title documents and surveys before filing.
- Ensure every co-owner receives proper notice to avoid delays.
- Consider mediation to resolve disputes before initiating court proceedings.
- Stay aware of statutory deadlines for exceptions to the commissioner’s report.