Detailed Answer: How co-owners start a partition action in West Virginia
When two or more people own the same piece of real property, and they cannot agree on how to use, divide, or sell it, any co-owner can ask a court to force a division. That court process is called a partition action. Below is a plain-language explanation of how co-owners in West Virginia typically initiate and carry a partition action, what to expect, and practical steps to prepare.
What is a partition action?
A partition action is a civil lawsuit filed to divide shared real property (partition in kind) or to force a sale and divide the sale proceeds (partition by sale). Courts prefer partition in kind (physically dividing land) when it is practical and fair, but they order a sale when division would be impractical or would substantially reduce value.
Who can file?
Any co-owner of the property may file a partition action against the other co-owners, heirs, or parties with interests (liens, mortgages) in the property. If an owner has only a partial interest (for example, a tenant in common), that owner still has the right to seek partition.
Pre-filing steps to consider
- Try to reach agreement: Courts expect co-owners to attempt negotiation or mediation before filing. A written demand or settlement offer may help later.
- Collect ownership documents: deed(s), title report, mortgage statements, tax bills, leases, and any written agreements among owners.
- Identify all interested parties: owners, heirs, lienholders, tenants, and any party with a recorded interest.
- Check local requirements: county clerk and circuit court procedure can vary by county. Consider informal appraisal or valuation to set expectations.
Filing the complaint (what goes into the initial court papers)
The plaintiff files a complaint for partition in the circuit court for the county where the property is located. Typical elements of the complaint include:
- Caption and identification of the court and case.
- Description of the property sufficient for identification (legal description from the deed).
- Names and addresses of all co-owners and any known lienholders or other parties with interests.
- A statement of the plaintiff’s ownership interest and how the property is owned (e.g., tenants in common).
- A clear request for relief: partition in kind OR partition by sale (or request that the court decide which is equitable), appointment of a commissioner or master to effect the partition or sale, and distribution of proceeds.
- Request for accounting of rents, profits, taxes, mortgage payments, and expenses since co-ownership if applicable.
Filing typically requires a filing fee and service of process on all named defendants (other owners and interested parties). If a defendant cannot be located, the court may allow service by publication under West Virginia civil procedure rules.
Service, answers, and defenses
After service, defendants may answer, assert defenses, or counterclaim. Common defenses include claims that a particular interest is not subject to partition (for example, tenancy by entirety claims for married couples), equitable claims, or an assertion that a valid agreement prohibits partition (a buy-sell or co-ownership agreement).
Discovery, valuation, and the court’s decision
Parties often exchange information and may obtain appraisal(s). The court weighs factors such as:
- Whether the property can be physically divided without materially reducing the value of each share.
- Practicalities: size, zoning, access, improvements, and mortgages or liens.
- Equitable considerations: contributions to purchase price, improvements, payment of taxes, and conduct of co-owners.
Partition in kind vs. partition by sale
If the court orders partition in kind, it will direct how the property will be divided and may appoint a commissioner to produce a plat and implement the division. If partition in kind is impracticable or would be unfair, the court may order a sale (often by auction) and direct how the proceeds will be divided after paying liens, taxes, and allowable costs.
Commissioner, sale, and distribution
The court commonly appoints a commissioner or master to handle appraisal, oversee a sale, and report back. The commissioner follows the court’s instructions. After sale and payment of debts and court-allowed costs, the remaining proceeds are distributed among owners according to ownership shares, adjusted for contributions or court-ordered offsets.
Costs, liens, and mortgages
Mortgage lenders and lienholders must be named as parties. Sale proceeds generally first satisfy liens and mortgages. The court will also decide how to allocate court costs and attorney fees; in some cases, costs are split among co-owners or assessed against a party who acted unreasonably.
Timeline
Timelines vary. A straightforward partition can take several months; contested or complex cases (many defendants, title issues, or appeals) can take a year or more.
Where to find West Virginia rules and statutes
For statutory text and to research procedures, use the West Virginia Code online and the West Virginia Judiciary resources:
- West Virginia Code: https://code.wvlegislature.gov/
- West Virginia Judiciary — rules and court information: https://www.courtswv.gov/
These resources provide the governing statutes and court rules that control civil actions, service, and the court’s authority to order partition and appoint a commissioner.
When to hire an attorney
Consider hiring an attorney if:
- Title and lien issues exist.
- Multiple parties, heirs, or out-of-state owners complicate service.
- You need help valuing property or protecting rental income or expenses.
- Other co-owners resist reasonable division or the case involves complex equitable claims.
An attorney can prepare the complaint, identify necessary parties, handle service, and advocate for a fair division or sale and for proper allocation of costs and credits.
Note: This section explains typical court procedures in West Virginia but does not replace advice from a qualified attorney licensed in West Virginia familiar with your facts.
Helpful Hints — Practical checklist for co-owners preparing a partition action
- Get a certified copy of the deed and a recent title search or owner’s title report.
- Collect records: mortgage statements, tax bills, utility bills, lease agreements, receipts for improvements or repairs, and insurance policies.
- Try a written demand and offer to mediate before filing; courts often view attempts to resolve matters favorably.
- Identify and list every possible interested party (creditors, lienholders, heirs). Use county land records to confirm recorded interests.
- Obtain at least one professional appraisal early if value or division is likely to be disputed.
- Keep a detailed accounting of payments you make for mortgage, taxes, insurance, and repairs—this can affect distribution.
- If you live on the property, understand claims for use and occupancy (rent) and how courts can credit those amounts.
- Expect to pay filing fees and to post costs or bond in some circumstances; check local circuit court practices.
- Ask an attorney about temporary relief (injunctions) if a co-owner removes fixtures, sells, or damages property pending resolution.
Disclaimer: This article explains general legal concepts and practical steps for partition actions under West Virginia law. It is educational only and not legal advice. For advice about a specific situation, consult a licensed attorney in West Virginia.