Detailed Answer
Short answer: In West Virginia a court that orders partition can appoint a commissioner to carry out a sale when co-owners cannot agree. The commissioner must follow the court’s order, market and negotiate the private sale, report back to the court, and obtain court confirmation before the sale is final and proceeds are distributed. As a co-owner you have procedural protections: notice, the right to object, the right to ask the court to require a public sale or set sale terms, and the right to review the commissioner’s account before distribution.
How the process usually starts
A partition action begins when one or more co-owners file a petition in the circuit court seeking division of jointly owned real property. The court first considers whether the property can be physically divided (partition in kind). If the court finds physical division impractical or inequitable, it will order partition by sale and may appoint a commissioner to carry that out.
Who appoints the commissioner and what authority does the commissioner have?
The circuit court appoints the commissioner and sets the scope of the commissioner’s authority in the appointment order (for example, whether the commissioner may sell publicly or privately, whether the commissioner should seek sealed bids, minimum sale price, who pays marketing costs, and reporting deadlines). The commissioner acts under the court’s supervision as an officer of the court and must follow the order and applicable law.
Private sale vs. public sale — what changes?
If the court authorizes a private sale, the commissioner can negotiate directly with buyers, accept offers, and enter a contract subject to court confirmation. Private sales are often used when a public auction would fetch less value or when the court finds a private sale is in the owners’ best interest. A private sale typically requires the commissioner to:
- Provide notice to all parties and lienholders.
- Obtain and present evidence of market value (appraisal or comparable sales).
- Obtain offers in writing and keep a written record of marketing efforts and negotiations.
- Report the terms of any accepted offer to the court and ask the court to confirm the sale before conveyance and distribution of proceeds.
What happens after the commissioner accepts an offer?
Typical next steps:
- The commissioner files a written report and a petition for confirmation of sale with the circuit court that appointed them. The report usually includes the sale contract, evidence of marketing and value, and recommendations about distribution of proceeds.
- The court schedules a confirmation hearing and provides notice to all parties and known lienholders.
- At the hearing, any co-owner or lienholder may object to the sale (for example, arguing the sale price is unfair, the sale terms are unreasonable, or the commissioner failed to follow the court’s order).
- If the court finds the sale fair and in the owners’ best interest, the court confirms the sale, authorizes conveyance, and directs distribution of proceeds after paying costs, liens, mortgages, taxes, and the commissioner’s fees.
- If the court refuses confirmation, the court may order a different sale process (for example, a public auction) or return the matter to the commissioner with new instructions.
What rights and remedies do you have as a co-owner who disagrees?
- Right to notice: You must receive notice of the commissioner’s report and the confirmation hearing.
- Right to object: You can object in writing and appear at the confirmation hearing to state why the sale should not be approved.
- Request court-ordered safeguards: Ask the court to require an appraisal, set a minimum sale price (reserve), require competitive bidding or a public sale, or require the commissioner to post a bond.
- Ask for an accounting: You may request a full accounting of marketing efforts, offers received, commissions, and costs before distribution.
- Appeal or post-judgment relief: If the court confirms a sale you reasonably believe was improper, you may have post-judgment remedies or an appeal, but these are time-limited and fact-dependent. Consult a West Virginia attorney promptly.
Practical timeline (typical, subject to court scheduling)
From filing a partition to confirmed sale often takes several months. Key milestones:
- Appointment of commissioner: a few days to a few weeks after a partition order.
- Marketing and negotiation: several weeks to a few months (depends on property and court’s order).
- Commissioner report filed and confirmation hearing set: court schedules usually 2–8 weeks out.
- After confirmation: conveyance and distribution may occur within weeks depending on closing or court directions.
Hypothetical example
Two siblings own a vacation cabin as tenants in common. They disagree about selling. The court appoints a commissioner and allows a private sale. The commissioner markets the cabin, receives two written offers, and accepts one contingent on court confirmation. The commissioner files a report, the court schedules a hearing, and both siblings attend. One sibling objects that the price is too low and asks for an appraisal and public sale. The court reviews the evidence (appraisal and marketing), finds the private sale price fair, confirms the sale, orders payment of mortgages and costs, and directs distribution of the remaining proceeds between the siblings per their ownership shares.
For primary source material and statutory text, consult the West Virginia Code (search relevant provisions for “partition” and “commissioner”) at the official West Virginia Legislature code site: https://code.wvlegislature.gov/. The circuit court rules and local practice also affect procedure; check the local circuit court’s rules and the court’s appointment order for specific requirements.
When you should get a lawyer
If the commissioner proposes a private sale and you have concerns about the process, value, or fairness, talk to a West Virginia property or civil litigator as soon as possible. Key reasons to consult an attorney include: protecting equity you believe is undervalued, objecting to sale terms, defending your ownership interest, enforcing notice or appraisal requirements, or preserving appeal rights. Time limits apply to post-judgment actions, so do not delay.
Disclaimer
This information is educational only and does not constitute legal advice. It summarizes common processes under West Virginia law but cannot address your unique facts. Consult a qualified West Virginia attorney about your situation.
Helpful Hints
- Ask the court for written instructions to the commissioner so the scope and safeguards are clear.
- Request an independent appraisal early so you have a benchmark for fair market value.
- Get copies of all offers, the commissioner’s marketing log, and any title or lien searches before the confirmation hearing.
- Consider whether a public sale or sealed bids might yield a higher price than a private sale; raise this with the court if concerned.
- Ask the court to require the commissioner to post a bond to protect against failures or mismanagement.
- Keep records of communications with co-owners and the commissioner; those can be evidence if you object to the sale later.
- If you want to buy the other shares, tell your attorney early — courts sometimes allow co-owners to purchase the whole property at appraisal or by bidding at confirmation.
- Be prompt: file written objections and appear at the confirmation hearing; missing deadlines can waive important rights.
- Use the official West Virginia Code site for statute searches: https://code.wvlegislature.gov/.