If two or more owners of real property, often through an inheritance, disagree as to whether or how to sell the property or whether one person is entitled to live on the property, a remedy is filing a partition suit, which is a civil action brought in the Circuit Court where the real property is located. Code of Virginia §8.01-83 provides the basis for the partition suit, depending on whether the property can be divided or not.
In a Partition Suit, as with all civil actions in Circuit Court, parties are entitled to discovery (Interrogatories, Requests for Admission, Requests for Production of Documents and Depositions), hire expert witnesses to put forth their position, and present evidence at trial. If the Judge rules that the property shall be sold, he or she may appoint a commissioner to sell the property, and distribute each party’s share of the net proceeds.
One problem seen in disputes regarding real estate is a delay. Parties delay either because they expect to work out their differences but one or more of them pass away before they come to an agreement and their heirs now have different views, or no one party wants to be the Plaintiff who files the partition suit in Circuit Court. Generally, when years pass without a resolution, the differences become more difficult and more expensive to resolve.
Let’s look at two possibilities in a partition suit: one, the property is “not susceptible to division;” and two, the property can be divided.
One- the property is “not susceptible to division.” In this case, the Judge decides the best way to sell the property if none of the parties want to or can purchase the other party or parties’ share(s). Possibilities are 1.) listing with a realtor, perhaps for 6 months to see if the property sells; or 2.) conducting a sale by a commissioner appointed by the Judge, which commissioner advertises the property for sale and usually conducts the sale at the property, giving prospective purchasers time to view the property before the bidding begins. The sale must be approved by the Judge. In either 1. or 2. above, commissions are paid (to the realtor(s) or to the commissioner) and the net proceeds divided between or among the parties.
Two- the property can be divided. Sometimes the parties are able to negotiate the division, with one party taking land and another party or parties having their portion sold using scenario 1. or 2. above.
In all cases, the more details that can be agreed to between or among the parties, the less time and money will need to be spent to resolve the differences through a partition suit. Although some parties do not hire an attorney (are pro se), most do hire an attorney to represent them in a partition suit. Often, having two (or more) attorneys working toward a solution, without the direct confrontation and emotions of the parties, helps to speed up the resolution. In any case, don’t let the disagreement go for years without resolution.