Detailed Answer
When property passes to multiple heirs in Virginia, the default ownership form is usually tenancy in common unless the will or deed says otherwise. Each heir (co-owner) owns an undivided fractional interest in the whole property. If one heir lives on the property and refuses to leave or to agree to sell, the other co-owners have several legal options under Virginia law to protect their interests.
1. Partition action — the usual legal remedy
Co-owners who cannot agree can ask a circuit court to force a division of the property through a partition action. The court has two primary remedies:
- Partition in kind: the court divides the property into separate parcels so each owner gets a physical portion. This works only when the land can be practically divided without unfairness.
- Partition by sale: when practical division is not possible or fair, the court orders the property sold and distributes the proceeds among the owners according to their shares.
In Virginia, partition actions proceed in the circuit court for the county or city where the property is located. The court can appoint a commissioner or trustee to manage the sale, receive bids, and distribute proceeds. For general statutory guidance on civil actions and remedies, see the Code of Virginia, Title 8.01 (Civil Remedies and Procedures): https://law.lis.virginia.gov/vacode/title8.01/. For practical steps on filing in circuit court, see the Virginia Judicial System: https://www.vacourts.gov/.
2. Possession, rent, and “ouster” issues
An occupying co-owner does not automatically have exclusive rights to keep the whole property. Co-owners who are excluded from possession can ask the court for an accounting of rent or mesne profits — money the occupant should pay for exclusive use. If the occupant originally entered with permission but then denies the other co-owners access, that can amount to an ouster, which supports claims for rent and may factor into equitable relief the court orders.
3. Ejectment or unlawful detainer — when to remove a holdover occupant
If the occupant has no legal right to remain (for example, their claim to the property is invalid or the court awarded possession to others), other owners may be able to remove them through an ejectment or unlawful-detainer proceeding. These remedies vary in procedure and proof. Ejectment usually requires proof of superior title or right to possession; unlawful detainer addresses holdover tenants. Speak with a Virginia attorney to determine which proceeding fits your facts.
4. Buyout, negotiation, or temporary agreements
Litigation can be costly and slow. Co-owners frequently negotiate buyouts (one owner pays the occupant to buy their share) or temporary written agreements covering rent, maintenance, and who pays taxes and insurance while the dispute is resolved. If you can reach an agreement in writing, you control the timing and costs and avoid court orders that may not match your preferred outcome.
5. What the court considers
When a court decides whether to partition in kind or by sale, or how to apportion costs and profits, it considers factors such as:
- Whether the property can be fairly divided
- Each owner’s percentage interest
- Contributions to taxes, mortgage payments, and improvements
- Whether the occupant has wrongfully excluded others
- Fair market value and practicality of sale
6. Timeline and costs
Expect months (sometimes a year or more) for contested litigation. Court fees, attorney fees, appraisal and surveying costs, and trustee/commissioner fees for sale all reduce the net proceeds. Courts have discretion to allocate costs and may offset improper occupancy by awarding rent or other credits to non-occupying owners.
7. Practical evidence and documents to gather
If you plan to negotiate or go to court, collect:
- The deed(s), will, or probate documents showing ownership shares
- Tax bills and mortgage statements
- Records of payments (taxes, insurance, mortgage, utilities)
- Evidence of improvements or repairs and who paid for them
- Any written communications about occupancy, permission, or offers to buy
8. Practical next steps
- Try a written settlement: offer a buyout or written terms for occupancy, rent, cost-sharing, and timing for sale.
- Get a property appraisal so you and the occupant know market value.
- Consult a Virginia real estate or probate attorney to evaluate filing a partition action or other remedies.
- If you decide to litigate, prepare to ask the circuit court for partition, accounting of rents/profits, and any necessary possession orders.
For general consumer information about probate and estates from the Virginia State Bar, see: https://www.vsb.org/site/public.
Helpful Hints
- Document everything. Dates, payments, written requests to vacate, and offers to buy help your case.
- Get an appraisal early. A clear market value makes buyouts and settlements easier.
- Consider mediation. Courts often encourage parties to try mediation before a long trial.
- Be careful about self-help. Trying to lock someone out or remove personal property yourself can create criminal or civil liability.
- Ask the occupant to sign a temporary occupancy agreement that covers rent, utilities, taxes, and maintenance while you negotiate or prepare litigation.
- Understand costs. Partition lawsuits can reduce sale proceeds because of fees and court costs—sometimes negotiation yields a better net result.
- Find local counsel. A Virginia attorney familiar with your city or county’s circuit court practice can guide strategy and filing requirements.
Disclaimer: This article provides general information about Virginia law and is not legal advice. It does not create an attorney-client relationship. For advice about your specific situation, consult a licensed Virginia attorney.