It is a not uncommon occurrence in the Shenandoah Valley for family members–sometimes distant family members–to own land together. Perhaps they got together to buy some acreage for a farm out in the county. Perhaps they inherited a house in a subdivision when a parent or grandparent passed away. It is also not uncommon to find that the co-owners of the property do not agree about how the property should be managed, how it should be used, or even if they should still own it at all.
While it is unfortunate when these disagreements arise, the laws of the Commonwealth of Virginia provide a path for the co-owners–whether family, friends or strangers–to resolve their real estate related disagreement: The Partition Suit.
A partition suit is a court action where the co-owners for real estate ask the Court to “partition” land. “Partition” in this context just means “divide” and in a partition suit, there are two ways that this can happen.
Negotiating a Buyout: Before resorting to Court, however, is to try and negotiate a buyout of the other co-owner’s interest. If you have a small group of co-owners, it may be possible for one side to buy the other out. The parties can have the property appraised and then can negotiate for one co-owner to sell to the other. Since litigation can be expensive and time consuming, a negotiation of this kind can benefit all of the parties by bringing the disagreement to a close quickly.
However, sometimes a negotiation is not possible. If property is inherited through a generation or two, it is not uncommon for a dozen or more family members to end up with a range of ownership interests. Getting that many people to agree to anything is difficult. Or perhaps you do not even know who all of the co-owners are. Distant cousins may move out of the area, they may marry and divorce, they may have children and grandchildren–it is easy to see how spread out and hard to track down all of the co-owners can be in certain situations.
So, even if you want to negotiate a settlement, it may not be possible. In this case, the only resort to resolving the problem, and clearing the title, is a partition suit.
Partition in Kind: The Court first looks to see if the land can actually be physically divided among the co-owners. This is called “partition in kind.” While this sounds simple, it is usually extremely difficult to do, if not impossible. For example, if you have a situation where there are a small number of co-owners and the land a large tract of farm land, perhaps it could be subdivided and each of the owners get a parcel that is equal to their ownership interest in the land. However, in practice, it is rarely the case that it is this simple. Land is not uniform and dividing it in half (or thirds or tenths or twentieths) usually not practical, not possible and does not result in parcels of equal value. Part of the land may be fertile and part may be rocky. Part may have excellent road frontage and part my be on the top of a ridge with no access.
Or imagine: You have a single family home in a neighborhood. Growing up, I am sure you saw many cartoons where the characters painted a line across the floor to divide a room when they were not getting along. While this is amusing, it is not actually a recognized legal remedy.
Partition by Sale: For this reason, most partition suits result in a different kind of division. In this case, the Court orders the sale of the property and the proceeds of that sale are divided. This is “partition by sale.” The Court appoints someone–usually an attorney for one of the parties–as a special commissioner with the power to sell the property. The Court can also determine the manner in which the property is sold (whether at auction or listed with a realtor) and the initial listing price for the property. At this point, it is usually necessary for the parties to obtain an appraisal for the property as well as a survey.
Once the special commissioner sells the property, she must appear again before the Court and get approval for the distribution of the funds. In some cases, the various interests of the parties are not in dispute and that division is easy. In some, this division is still contentious. Perhaps one party has paid more to maintain the property or someone’s interest is in dispute. In these cases, there will need to be a final hearing to determine how the money will be divided.
In any of these situations, there are a variety of complex legal issues that arise. A full title examination will need to be done and the precise interests of all of the co-owners will need to be determined. Having an an attorney that is experienced in real estate law is necessary to make sure that your interests are best protected. Clark & Bradshaw is one of the Shenandoah Valley’s oldest real estate law firms and our attorneys have decades of experience working through real estate disputes of all kinds–including partition suits. If you have any questions about partitioning land, or any other kind of dispute, please feel free to contact us. We would be more than happy to serve you.