Detailed Answer

Short answer: If mediation fails in West Virginia, a co‑owner (a cotenant) can file a partition action in the circuit court for the county where the land sits. The court can order a physical division of the property (partition in kind) if that is practical, or — if division would be impractical or inequitable — order a sale of the property and divide the net proceeds among the owners. The sale may be voluntary (a buyout) or forced by the court. This process involves filing a complaint, serving all interested parties and lienholders, possible appointment of commissioners or appraisers, and court hearings.

How partition actions work in West Virginia

When mediation does not resolve ownership disputes, partition actions are the standard judicial remedy to break a co‑ownership. In West Virginia, you generally bring a partition claim in the circuit court for the county where the property is located. The court follows civil procedure and evidence rules to decide whether to divide the land physically or to order a sale and distribute proceeds.

Key steps you should expect:

Filing a complaint: The plaintiff (the co‑owner who files) prepares and files a complaint for partition naming all known owners, holders of recorded liens (mortgages), and anyone with a recorded interest in the property. The complaint should describe the property (legal description or sufficient description), state the plaintiff’s interest, and request relief (partition in kind or sale).
Service and notice: All parties and lienholders must be served with the complaint so they can respond. The court will require notice to interested parties so everyone may present claims.
Response and claims: Defendants can admit, deny, raise defenses, or assert counterclaims (for example, alleging fraud or claiming superior title). The court resolves disputed title or interest issues before ordering partition.
Determination of type of partition: If the court concludes the property can be fairly and practically divided, it may order partition in kind. If physical division would be impractical, wasteful, or impossible (for example, a single house on a small lot), the court can order sale and distribution of proceeds.
Appointment of commissioners or referees: Courts commonly appoint commissioners, appraisers, or referees to survey, value, and recommend how to divide or sell the property. Those reports inform the court’s order.
Sale process: When the court orders a sale, it will set procedures (public auction or private sale under court supervision). Proceeds pay liens, costs of sale, and then are divided among owners according to their ownership shares, after accounting for any court‑awarded costs or commissions.
Buyout option: Before or during the court process, one cotenant can offer to buy out the others at a price based on an appraisal. Courts often encourage buyouts as an alternative to sale at auction.
Liens and mortgages: Recorded liens (mortgages, tax liens) remain attached to the property and typically must be paid from sale proceeds or otherwise resolved in the partition proceeding.

What the court considers when deciding to force a sale

The court balances practical and equitable considerations. Common factors include:

Whether the property can be divided without significant harm to value.
The nature of the property (single residence, commercial parcel, farmland, etc.).
Number and interests of cotenants and whether dividing would be fair to all.
Existing liens, mortgages, or prior agreements about division or sale.

What to expect about timeline, costs, and outcomes

Partition actions can take several months to more than a year, depending on complexity, contested title issues, and local court schedules. Costs include court filing fees, service costs, attorneys’ fees, surveyor or appraiser fees, and any costs of sale. The court can allocate some costs to one party in certain situations, but each party often pays their own attorneys’ fees unless the court finds a basis to shift fees.

Practical effects for co‑owners

After a court‑ordered sale, the buyer receives clear title free of the cotenants’ undivided interests (subject to liens resolved in the proceeding).
Net sale proceeds are distributed to pay recorded liens first (mortgages, tax liens), then sale costs, then to cotenants in their ownership proportions.
If a cotenant objects to the sale or claims to have a superior title interest, the court resolves that issue before ordering sale.

Where to find West Virginia law and court rules

West Virginia’s statutes and code are available on the state legislature website. For statutory text, procedures, and local rules, consult the West Virginia Code and your county circuit court’s local procedures. See: West Virginia Code (WVCODE) and the West Virginia Judiciary site at courtswv.gov for procedural and court contact information.

Helpful Hints

Gather key documents before filing (deeds, title search, surveys, mortgage statements, tax bills, prior agreements). Clear documentation speeds the process and helps your attorney evaluate options.
Consider a buyout. An appraisal and a written buyout offer can settle disputes faster and avoid sale costs and uncertainty of auction.
Talk to an attorney early. An attorney experienced in West Virginia real property and partition practice can explain local procedure, prepare pleadings, and advise on likely outcomes specific to your county’s courts.
Check for liens. Outstanding mortgages or tax liens will affect whether a sale is ordered and how proceeds are distributed. Notify lienholders and include them in the case so the court can resolve priorities.
Keep negotiating. Courts generally favor settlement. Even after a complaint is filed, mediation or settlement talks can stop the litigation and let owners craft a sale or division that works for everyone.
Expect costs. Budget for court costs, appraiser/surveyor fees, and attorneys’ fees. Ask your lawyer about whether the court could award costs against another party in your situation.
Understand tax implications. Sale proceeds can have capital gains tax consequences. Talk to a tax advisor about potential tax treatment of distributions from a sale.

Next practical steps

Try one last negotiation or mediated settlement focusing on a buyout or agreed sale plan.
If mediation fails, consult a West Virginia real property attorney to prepare a partition complaint and identify all interested parties and recorded liens.
File the complaint in the circuit court where the land is located and follow the court’s directions for notice, appraisal, and any hearings.

Disclaimer: This article is for general informational purposes only and does not provide legal advice. It does not create an attorney‑client relationship. For advice about your specific situation in West Virginia, consult a licensed West Virginia attorney.