Detailed Answer — How to force a partition in West Virginia when a co-owner refuses
This section explains, in plain language, the typical steps to start a partition action under West Virginia law when a co-owner will not agree to divide or sell jointly owned real property. A partition action is the legal tool that lets one or more co-owners ask a court to divide property ownership or order a sale and divide the proceeds. Remember: this is general information only and not legal advice.
1. Confirm who has a legal ownership interest
Before you begin, make sure you are actually a co-owner of the property. Look at the deed, title report, and any wills or trust documents. Note whether ownership is in tenants in common, joint tenants, a trust, or a business entity—ownership form affects rights and remedies but does not generally prevent a partition action.
2. Collect key documents and evidence
- Current deed and chain of title showing all owners.
- Mortgages, liens, and tax records on the property.
- Property tax bills and utility records showing possession or contribution.
- Any written communications asking the co-owner to agree to a sale or buyout.
- Survey or plat, if available.
3. Try to resolve the issue without court
Court is often avoidable and expensive. Before filing, send a written demand proposing a negotiated solution: sell and split proceeds, one owner buys out the other, or divide the parcel if a practical partition-in-kind is possible. Keep records of your attempts. Courts often encourage or require parties to consider settlement or mediation.
4. Where to file — which court has jurisdiction
In West Virginia, partition actions are filed in the Circuit Court for the county where the property is located. If you are unsure which county to use, file in the county where the land’s legal description and deed are recorded. The West Virginia Judiciary has a Circuit Courts page with local court contacts: https://www.courtswv.gov/circuit-courts/index.html.
5. Draft and file the partition complaint
A typical complaint for partition will:
- Identify the property and each person or entity with an ownership or possessory interest.
- State the type and percentage of each party’s claimed interest, if known.
- Ask the court to partition the property “in kind” (divide the land if practicable) or, if that isn’t possible or fair, order a sale and division of proceeds.
- Ask for appointment of a commissioner or master to handle inspection, valuation, sale, and distribution.
- Request that liens and mortgages be accounted for and paid from sale proceeds, and that costs and attorney fees be handled according to the court’s determination.
All persons with recorded or equitable interests must be named as defendants so the court can resolve everyone’s rights. After filing, the court issues a summons and you must serve the co-owner(s) and any lienholders according to West Virginia rules.
6. Service, responsive pleadings, and defaults
Once served, the co-owner can respond. If a co-owner ignores the lawsuit, you may be able to get a default judgment. If they contest the action, the court will set hearings and potentially order discovery, appraisals, and a valuation of the property.
7. Partition in kind vs. sale
The court will consider whether the property can be physically divided in a reasonable way (partition in kind). If physical division would be impractical, inequitable, or materially reduce value, the court is likely to order a sale and distribute net proceeds among owners according to their ownership interests, after paying mortgages, liens, taxes, and court costs.
8. Appointment of a commissioner or master
The court commonly appoints a commissioner or master to inspect the property, manage sale procedures, and report back to the court. The commissioner facilitates appraisal, solicitation of bids, public sale, or conveyance and then files a report for the court’s approval.
9. Paying liens, mortgages, and costs
Sale proceeds are used first to pay valid liens and mortgages, then to cover costs of sale, taxes, and court-appointed fees. Remaining funds are divided based on ownership shares and accounting for any contributions (for example, if one co-owner paid mortgage or major improvements, the court may account for credits).
10. Timeline and likely expense
Timelines vary. A straightforward action with an uncontested sale can take several months; contested litigation or disputes over valuation can take a year or more. Costs include filing fees, service fees, appraisal and survey costs, commissioner fees, and attorney fees. The court may apportion costs against the estate or between parties.
11. Practical options to consider
- Offer to buy out the other owner at a fair market price.
- Propose mediation to set terms for sale or division and avoid litigation costs.
- Consider a professional property management or rental agreement if immediate sale is not favorable.
12. When to talk to an attorney
If the title is unclear, liens or mortgages exist, co-owners contest the action, or if the property is complex (commercial, multiple parcels, or environmental issues), consult an attorney experienced in West Virginia real property litigation. An attorney can prepare the complaint, ensure proper service, handle valuation disputes, and protect your financial interests in court.
Important disclaimer: This article is for informational purposes only and does not constitute legal advice. Nothing here creates an attorney-client relationship. For legal advice about your specific situation, consult a licensed West Virginia attorney.
Helpful Hints — Quick checklist before filing a partition action in West Virginia
- Confirm the property county and file in that county’s Circuit Court: West Virginia Circuit Courts.
- Gather deed(s), title search results, mortgage statements, tax records, and any written agreements between owners.
- Document attempts to negotiate or mediate—courts look favorably on efforts to avoid litigation.
- Get a current market appraisal or at least a broker price opinion before filing to support your proposed remedy.
- Name all potential claimants (heirs, lienholders, trust beneficiaries) in the complaint to avoid later challenges.
- Be ready to propose whether partition in kind is practical; if not, be prepared for a court-ordered sale.
- Consider using mediation or settlement conferences to cut time and cost.
- If a co-owner won’t accept service and their address is unknown, an attorney can advise on substituted service or publication options under West Virginia procedure.