What is a partition action and who can file one?

It is not unusual for joint owners of property to disagree on how to use that property or divide their interests in it. Family inheritance is a common culprit of these conflicts. Particularly where someone has died intestate, or without a will, relatives who have suddenly become co-owners in inherited property often disagree on how a property should be used or what a fair, or equitable, division of the property would be.

Even where the parties should inherit equally, disagreements can arise if the co-owners disagree on how the property should be used, if one owner feels they have paid for more expenses associated with the property, or where one owner has caused damage that has lowered the property value. Sometimes one or more will claim they should be the sole beneficiary, or someone will move into the property claiming that they have tenant rights and refuse to vacate.

If co-owners cannot reach an agreement, they can look to the courts to make a decision on how to divide up, or “partition”, the property by filing a partition action. Who can bring a formal partition suit to divide property in Virginia is defined by Va. Code 8.01-81.

How can a property be partitioned?

Effective July 2020, new laws were enacted by the Virginia General Assembly that are intended to protect co-owners of the property, especially individuals who became co-owners through inheritance. Unless all of the parties can agree on the value of the property, the court will order an appraisal and hold an evidentiary hearing to determine the fair value of the property.

A partition by sale occurs when a co-owner seeks to force the sale of the property. A court will order the sale of real estate where it determines that division of the proceeds of a sale among the co-owners would be more equitable than subdividing the property into separate legal parcels. In most cases in Virginia, the court will appoint a real estate broker to oversee the sale, and the broker will be required to file a detailed report. Generally, a court-ordered sale is an open-market sale, unless the court determines that sale by sealed bids or at auction would be in the best interests of the parties. The court-appointed broker must offer the property for sale at a listing price no lower that the appraised value. If the property receives an offer for less than the appraised value, the broker will file a report detailing the offer, and the court will hold a hearing to approve the sale. Once the court has entered an Order that stipulates that the property must be sold, the other co-owners cannot block a sale by reasonable offer.

A partition in kind means that the property is divided into separate legal parcels by proportional value. This type of partition is most commonly used for rural properties or undeveloped land that can be subdivided into parcels according to the co-owners percentage of interest in the property. Courts will not order a partition in kind if a co-owner would receive a portion of the land that is worth substantially less than they would receive through the proceeds of a sale. Further, before deciding to use this type of partition, the courts must ensure the division complies with local zoning ordinances.

A partition by allotment occurs where one or more of the co-owners purchase the other co-owners interest in the property, at a price set by court-ordered appraisal. If a co-owner seeks to buy out the interests of the other owners, courts in Virginia must consider a number of factors in evaluating the request. These factors include: how long the co-owners have held interest in the property; the petitioner’s sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value; if the petitioner is currently using the property, how it is being used, and whether and how they would be harmed if they could not continue the same use of the property; and the degree to which any or all of the co-owners have contributed to any real estate taxes, insurance, and maintenance and upkeep costs.

Partition actions and negotiations are complex, and this summary is meant to provide a general overview only.

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