What to expect if co‑owners refuse mediation and you want a forced sale in West Virginia

Short answer: Yes — if co‑owners (including heirs) refuse mediation or won’t sign off, a joint owner can generally ask a West Virginia circuit court to order a partition of the property. If physical division (partition in kind) is not practical, the court can order a sale and divide the sale proceeds according to each owner’s legal share. Courts prefer negotiated solutions, so mediation is recommended, but it is not required for a forced sale.

Detailed answer — how a forced sale works under West Virginia law

This section explains the typical path when some heirs or co‑owners refuse to cooperate. The description below assumes the property is real estate owned as tenants in common (the most common situation for heirs). If ownership came through a trust, joint tenancy with rights of survivorship, or if the property is still in a probated estate, some rules differ — see the Helpful Hints for those situations.

1. Who can start a forced‑sale (partition) action?

Any person who owns an interest in real property may file a partition action in the appropriate West Virginia circuit court asking the court to divide the property or order a sale. That includes heirs who have received an ownership interest by will or by intestacy.

2. Filing a partition action

A partition action asks the court to either physically divide the real property (partition in kind) or, if that is impracticable, to order the property sold and the proceeds divided. The plaintiff files a complaint naming all co‑owners and any parties with recorded interests (mortgages, liens). The court will notify defendants and set a schedule for pleadings, possible mediation, appraisal, and hearing.

3. Mediation and settlement efforts

West Virginia courts often encourage or require parties to try mediation or settlement conferences to avoid sale costs and delays. However, mediation cannot be forced on an unwilling party outside of a court order. If some heirs refuse to mediate or refuse settlement offers, the filing party can still proceed with the partition lawsuit. The court will consider whether a negotiated buyout or in‑kind division is feasible, but will order relief even when some owners resist.

4. Partition in kind vs. partition by sale

If the court finds it practical to divide the property fairly — for example, where land can be divided into separate parcels without greatly reducing value — it may order partition in kind. More often with a single-family home or an improved parcel, physical division is impractical. In that case, the court will order a sale (partition by sale). The court often appoints a commissioner or special master to sell the property at public auction or private sale under court supervision.

5. Division of proceeds and priority claims

After sale, proceeds are applied in this general order: (1) reasonable costs of sale and court costs (including fees for the commissioner), (2) valid liens or mortgages secured against the property, and (3) remaining balance distributed among owners according to their ownership shares. If owners’ shares are unequal, distribution reflects legal interests (percent ownership). If some owners have paid more for upkeep or taxes, they may seek an accounting or reimbursement from the proceeds, and the court will decide those claims.

6. Impact of mortgages, liens, and probate

Recorded mortgages and liens remain attached to the property and must be paid from sale proceeds in order of priority. If the property is still in probate or a court‑supervised estate, the executor or personal representative may need court approval to sell. In many cases heirs will obtain their interest through probate before or during a partition action; the partition action can proceed against the estate as a party when necessary.

7. Timeline and costs

Timelines vary. A simple negotiated partition can be resolved in a few months; a contested partition often takes longer — six months to more than a year — depending on court schedules, required appraisals, and sale procedures. Expect court filing fees, appraisal and commission fees, attorney fees (often significant if the case is contested), and costs of sale. The court may allocate some costs between parties.

8. Practical options before filing

Even if some co‑owners resist, you have options that may avoid court: (1) offer to buy out the other owners at a fair market price; (2) propose a structured buyout where payments replace immediate sale; (3) rent the property and share net income until an agreement; (4) obtain a partition voucher or settlement agreement that clears title on sale. If these fail, a partition suit remains available.

9. Where to find the law

West Virginia’s statutory and common‑law rules govern partition actions. For the statutory text and related provisions on real property and conveyances, see the West Virginia Code, Chapter 38 — Conveyances: https://code.wvlegislature.gov/38/. For local procedure, review the West Virginia Rules of Civil Procedure and the circuit court’s local rules.

Helpful Hints

Gather documents first: deed, will, death certificate (if inheritance), mortgage statements, tax bills, survey or plat, insurance policies, and receipts for substantial improvements. Courts and attorneys will ask for these.
Know your ownership type: If you’re a tenant in common, partition is usually available. If the property is in joint tenancy with rights of survivorship, an automatic transfer may have occurred at death and a different analysis applies.
Keep records of payments: If you’ve paid taxes, mortgage, or made improvements, document them — you may be entitled to reimbursement or credit in a partition accounting.
Consider an appraiser: A current market appraisal supports buyout offers and provides evidence for the court about whether partition in kind is feasible.
Explore buyout formulas: A common approach is to obtain an appraisal, then offer the minority owner that portion of the appraised value, or to use a formula that credits improvements and debts.
Expect liens to reduce proceeds: Liens and mortgages are paid from sale proceeds, which can reduce the net amount available to owners.
Think about taxes: Capital gains and other tax consequences may affect how proceeds should be split and whether a sale is wise. Consult a tax advisor.
Hire counsel early if contested: Partition suits involve pleadings, discovery, appraisal disputes, and potentially a commissioner’s sale. An attorney experienced in real estate and probate litigation can streamline the process.
Use mediation if possible: Even if one heir initially refuses, the court may order settlement conferences. Mediation is often faster and cheaper than litigation.