Basics of a Partition Suit in Virginia

What is a Suit for Partition of Real Estate?

Chances are, if you are asking this question, you are in the middle of a dispute over some real estate with a co-owner or owners.  Partition of Real Estate is required when two or more owners cannot agree on what to do with a property.  For example, when multiple family members inherit one house or when business partners decide to go separate ways, a partition of real estate is the solution to a logistical dilemma.

There are two types of partition: 

Partition in kind (actual partition) and partition by sale (forced sale).  Actual partition would break large swaths of land into separate parcels for each party.  Partition by sale, however, sells the property and divides the proceeds amongst the parties.  Today, partition by sale is usually the most efficient and satisfying solution for everyone involved.

In Virginia, it is well established law that owners of real estate have an absolute right to demand a partition. Wiseley v. Findlay, 24 Va. 361 (1825). While it is an absolute right, it is also rather costly. The parties are almost always better off if they can come together and agree to the mutual sale of the property. I recognize that this can be difficult in some situations. For example, one family member may be struggling emotionally with the sale of an old family property. In others, there is a resident in the home who has nowhere else to go. Whatever the circumstances, the result is going to be the same in the end since one co-owner has the right to demand the partition.

Whenever someone comes to my office complaining about the other co-owners of property, I almost always tell them to send a written demand to the other parties. From the outset, it is important to create a paper trail that a) this co-ownership is clearly not working and b) the status quo cannot continue. In this letter, you could offer to buy (or sell) the other party out. In many instances, we know that one of the co-owners simply does not have the credit or finances to buy out the other. Perhaps you could also offer to contact realtors together?

The importance of this paper trail is that it may become useful when a court considers your requests for fees and expenses down the road. It will heighten your position where you can show that you have done everything you can to resolve the matter amicably.

It’s also important to note that many partition actions do settle prior to a final hearing. The parties are extremely dug in at the outset. I cannot stress enough that co-owners are almost certainly in a better position if they can negotiate the sale or transfer of interest amicably.

Not all partition suits can be resolved by agreement of the parties. I am certainly familiar with cases involving emotional turmoil after a death or divorce.

Just keep in mind that lawsuits for partition of real estate can be lengthy and stressful.  Most parcels in this situation have been purchased during a relationship that is no longer successful or it has been inherited and attached to family nostalgia and sentimentality.  These situations can put stress on petitioners who must explain the ownership of the property, the circumstances that cannot be resolved between co-owners, and request that it either be divided or partitioned by sale to a court.  A good attorney keeps your best interests protected in the midst of emotional distress.  In these instances, it may be beneficial to start with trying to talk to the other co-owners without the intimidation of court proceedings.  At the same time, I certainly recognize that you may be well beyond that stage.

Ryan C. Young | Partition of Real Estate | Richmond, Virginia Attorney