Quick answer

If you and your siblings co-own inherited real property as tenants in common, any one co-owner can start a partition action in West Virginia circuit court. If the court finds the property cannot be fairly divided in kind, it can order a partition by sale and distribute the proceeds among owners after paying liens and costs. A minority of co-owners cannot permanently block a forced sale, but they can raise defenses and seek concessions (buyouts, delay, or credit for contributions).

Detailed answer — how partition-for-sale works in West Virginia

1. Who can file and on what legal basis

Any person who holds an undivided interest in land (commonly as tenant in common) may bring a partition suit. The statutory framework for partition actions in West Virginia allows the court to divide the property in kind when practicable or, when division is impracticable or inequitable, to order the property sold and the proceeds divided. See W. Va. Code § 55-3-1. W. Va. Code § 55-3-1.

2. Preparatory steps before filing

• Confirm ownership: Obtain a certified copy of the deed(s) and, if applicable, the decedent’s probate documents to confirm each owner’s share and how title is held (tenants in common vs. joint tenancy).
• Title search: Check for mortgages, liens, unpaid property taxes, judgments, or easements that affect value and the eventual distribution of sale proceeds.
• Communicate: Send a written demand or offer to buy out dissenting siblings. Courts favor attempts at settlement, and a buyout avoids the time and cost of litigation.
• Consider appraisal: A professional appraisal gives the court and parties a value baseline and helps evaluate buyout offers.

3. Filing the complaint and required content

File a partition complaint in the circuit court for the county where the land lies. Typical elements include:

• A legal description of the property.
• The names and addresses of all co-owners and persons with an interest (mortgagees, lienholders, life tenants).
• A statement of each owner’s claimed interest or share.
• A request for partition in kind or, if not practicable, a partition by sale and distribution of the proceeds after costs and liens.

4. Service, response, and early case events

All defendants must be served with the complaint. Defendants may answer, contest the requested relief, assert offsets (e.g., payment for improvements, taxes, or waste), or ask for time to buy out the plaintiff’s interest. The court may order mediation or settlement conferences.

5. Partition in kind vs. partition by sale

The court will first consider whether a fair physical division is possible. If the court finds that dividing the parcel would be impractical or would unfairly prejudice one or more co-owners, it can order a sale and distribution of the proceeds. The court often appoints commissioners or a master to examine the property, report valuations, and recommend whether division is feasible.

6. Sale process and distribution

If the court orders sale, the court will typically appoint a trustee, commissioner, or a public official to sell the property—often at public auction—pursuant to court steps designed to get a fair market price. From sale proceeds the court pays liens, mortgages, unpaid taxes, costs of sale, and court costs. Net proceeds are then divided according to each owner’s legal interest, subject to any offsets (payments made for improvements, mortgage contributions, or debts owed).

7. What a minority co-owner can do

A minority co-owner cannot permanently prevent a partition; however, they can:

• Argue that partition in kind is practicable.
• Claim credits for contributions (repairs, taxes, mortgage payments) that should be deducted from their share of sale proceeds.
• Seek postponement to find a buyer or arrange a buyout.
• Raise equitable defenses such as laches or waiver if the plaintiff’s conduct makes partition inequitable.

8. Practical considerations and timelines

Partition suits can take many months to over a year depending on complexity, title issues, lien resolution, and whether the case settles. Expect costs for court filing fees, service, appraisal, commissioner fees, advertising the sale, and attorney fees if counsel is retained. Net proceeds reflect sale price minus these costs.

9. Taxes and post-sale effects

Sale of the property may trigger capital gains tax consequences for each co-owner based on their tax basis and the sale price. Consider consulting a tax advisor.

10. Where to file and where to get forms or help

Partition actions are filed in West Virginia circuit court in the county where the property is located. For general information about West Virginia courts and court contact information, see the West Virginia Judiciary: https://www.courtswv.gov/.

Helpful hints

• Try negotiation first: A buyout or agreed sale keeps more money in co-owners’ pockets by avoiding litigation costs.
• Document contributions: Save receipts for taxes, mortgage payments, repairs, and improvements — the court may credit these amounts.
• Get an appraisal early: An appraisal supports settlement and helps the court set fair terms if the case proceeds.
• Address mortgage and lien priorities: Liens attach to the property and will be paid from sale proceeds in order of priority.
• Consider a partition-in-kind proposal: If the land divides cleanly (e.g., acreage that can be split), present a proposed division map to the court.
• Expect questions on occupancy: If someone has been living on the property, the court will consider offsets for use and occupancy or rental value.
• Consult a West Virginia real property attorney: An attorney can prepare the complaint, ensure proper parties are named and served, and represent you at hearings.
• Mind deadlines: Promptly respond to pleadings and court orders; defaults can result in adverse rulings.