When people divorce after residing in a marital home, or a loved one dies and leaves real estate to several heirs, the parties often disagree about how to dispose of the property. Some individuals might want to keep the land or home for sentimental reasons, while others might prefer to have money to use as they see fit. Virginia law contemplates this scenario, and provides for the partition, or division in kind or by sale, of real property.
Who May Pursue a Partition Suit?
Va. Code Ann. § 8.01-81 provides that “[t]enants in common, joint tenants, executors with the power to sell, and coparceners of real property, shall be compellable to make partition and may compel partition.”
In other words, individuals who own potentially unequal interests in an undivided property by virtue of one or more wills, deeds, or other instruments without rights of survivorship (tenants in common), individuals, often spouses, who own equal interests in an undivided property by virtue of one instrument and with rights of survivorship (joint tenants), and a person appointed under a will to dispose of property (an executor with the power to sell).
How Does an Eligible Party Initiate a Partition Suit?
“Any court having general equity jurisdiction shall have jurisdiction in cases of partition; and in the exercise of such jurisdiction may take cognizance of all questions of law affecting the legal title that may arise in any proceedings, between such tenants in common, joint tenants, executors with the power to sell, coparceners and lien creditors.” Va. Code Ann. § 8.01-81.
Partition suits in Virginia should, therefore, be brought in the Circuit Court for “[t]he county or city wherein the subject land, or a part thereof, is situated,” pursuant to Va. Code Ann. §8.01-261, because the Circuit Court, as opposed to the General District Court, is empowered to make the determinations necessary to partition proceedings. Every party with an interest in the property at issue should be identified with as much specificity as possible and is entitled to notice of the proceedings.
If an interested party cannot be located after reasonable efforts to do so, then an Order of Publication, which allows for certain newspapers of record to print notices relevant to court cases, might be an option to address the notice issue.
What Remedies Are Available in Partition Suit?
Under Va. Code Ann. § 8.01-83, the remedy in a partition suit can take several forms, including (1) partition-in-kind, meaning a physical division of the property that is typically reserved for undeveloped land that can readily be divided into separate plots, (2) a sale of some or all of the property to one of the co-owners, who is willing and able to purchase the interests of other owners, or (3) a partition-by-sale, in which some or all of the property is sold to a third-party and the proceeds are divided among the owners, based on their respective interests.
How Does the Partition Take Place?
Assuming that the property at issue does not consist of several acres of land that is equally divided by a stream, a strong hypothetical candidate for partition-in-kind, in which smaller lots would be re-deeded, the partition will likely involve a sale to be arranged by a court-appointed Commissioner. The circumstances surrounding the property will inform whether the sale will be accomplished through listing with a real estate agent or by auction.
If you inherited an interest in real property in Northern Virginia or need to dispose of your marital home because of pending or anticipated divorce proceedings, then please contact our Fairfax divorce attorney at Keithley Law, PLLC, PLLC at (703) 454-5147 to schedule an initial consultation to discuss your potential rights and responsibilities with respect to a partition suit.
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