Quick answer

If two or more people co-own real property in West Virginia and they cannot agree on use, sale, or division, any co-owner may file a civil action in the county circuit court asking the court to partition the property. The court can order a physical division (partition in kind) when practical or order a sale and divide the sale proceeds among the owners after paying liens and costs. The action follows the state partition statutes and local civil-procedure rules.

Detailed answer — steps to start and complete a partition action in West Virginia

1. Confirm the type of ownership and your rights

Partition applies to co-owners of real property (commonly tenants in common or joint tenants). Before filing, review the deed and title to confirm each owner’s legal share. If title is held by a trust or business entity, the entity’s representative must be named.

2. Try informal resolution first

Courts expect co-owners to try to resolve disputes before litigation. Offer a written demand to buy out your share or to use mediation. Many judges view a reasonable settlement effort favorably and litigation costs can be high.

3. Prepare the Complaint for Partition

File a Complaint (civil petition) in the Circuit Court of the county where the property sits. The Complaint typically must:

• Identify the property (legal description and address).
• Name all record co-owners and known lienholders as defendants.
• State each party’s claimed ownership interest.
• Ask the court either for a partition in kind or, if not practicable, for a sale and distribution of proceeds.
• Ask for appointment of commissioners or a master to examine and divide or sell the property, and for a final accounting and distribution.

4. Serve defendants and include lienholders

All co-owners and parties with recorded interests (mortgagees, judgment creditors) must be served so the court can determine rights and ensure any liens are addressed. If someone cannot be found, the court may allow service by publication or substitute service under WV civil procedure rules.

5. Court process and possible interim orders

After filing and service, the court schedules hearings. Possible interim measures include:

• Temporary injunctions to prevent waste or sale until the case resolves.
• Orders for preservation of the property (insurance, maintenance).
• Orders requiring accounting for rents, profits, or expenses.

6. Partition in kind vs. partition by sale

The court prefers partition in kind (dividing the land) when it can be done fairly and without seriously reducing value. If the land cannot be divided equitably, the court will order sale. The specifics of how division or sale occurs are governed by the court’s order and applicable state partition statutes.

7. Appointment of commissioners and sale mechanics

The court often appoints commissioners or a commissioner to survey and physically divide the land or to oversee a sale. If the property is sold, the sale is usually at public auction under court supervision or by a court-appointed official. Proceeds are used to pay liens, court costs, and then distributed to owners according to their ownership shares.

8. Liens, mortgages, and prioritization

Recorded liens and mortgages attach to the property. The partition process does not erase valid liens; the sale proceeds normally pay mortgage holders and lien claimants in priority order before owners receive net proceeds. If a mortgage holder is not joined, the court may still protect the lender’s rights by requiring settlement from sale proceeds.

9. Final accounting and decree

After division or sale, the court reviews the commissioners’ report, resolves objections, and issues a final decree that directs distribution of proceeds, expenses, and any award of costs or attorney fees the court finds appropriate.

10. Timeframe and costs

Partition actions can take several months to over a year depending on complexity, disputes, appraisal and sale timelines, and appeals. Expect court filing fees, service costs, appraisal and survey costs, costs associated with sale (advertising, auctioneer), and attorney fees. The court may allocate costs between parties based on equities.

Relevant West Virginia statute references

West Virginia law provides the statutory framework for partition actions and the duties of courts and commissioners. See the West Virginia Code for the governing provisions and procedures (search for “partition” in the code). Two commonly referenced sections that address partition procedure and sale mechanics are available through the West Virginia Legislature’s code website:

• W. Va. Code § 37-3-1 (Partition — general provisions)
• W. Va. Code § 37-3-11 (Sale by commissioners and distribution of proceeds)

Note: local rules and other statutes may also apply. If a referenced statute does not match your exact issue, consult the West Virginia Code search at code.wvlegislature.gov or contact a lawyer for guidance.

11. Common outcomes and practical considerations

• If the property divides without significant loss of value, you may get a partition in kind and keep part of the land.
• If the property is indivisible (e.g., a single house on a small lot), expect an order for sale and distribution of sale proceeds.
• Mortgages and liens reduce proceeds; owners with unpaid liens may receive less or nothing if liens consume proceeds.
• Buyout opportunities: a co-owner can often buy others’ shares before or during the action — courts sometimes approve buyouts as alternatives to sale.

Hypothetical example

Three siblings each own one-third of a vacation house as tenants in common. They disagree about keeping or selling the house. One sibling files a partition action in the county circuit court asking for sale. The court appoints commissioners, lists the property for public sale, pays the mortgage and liens from sale proceeds, deducts court costs and sale expenses, and distributes remaining funds to the siblings in one-third shares.

Helpful hints

• Collect title documents (deed, mortgage, recorded liens) before you file. Clear documentation speeds the process.
• Try a written buyout offer and mediation first. Courts favor negotiated solutions and mediation can save time and money.
• Name all possible claimants in the Complaint, including mortgagees, tax authorities, and judgment lienholders — missing parties can delay or complicate the sale.
• Get an appraisal early to know the market value and to help the court decide whether partition in kind is feasible.
• Preserve the property: maintain insurance and prevent waste. A co-owner who allows deterioration may face claims for damages or offset costs in the final accounting.
• Understand costs: partition can be expensive. Ask the court or a lawyer about estimates for appraisals, surveys, and sale costs to weigh options.
• If you’re a mortgage holder or lienholder, be proactive: respond to the suit to protect your priority and to avoid unexpected distributions.