Disclaimer: This is general information about West Virginia law and is not legal advice. Consult a West Virginia-licensed attorney about your specific situation before taking action.
Detailed Answer — What to expect and the steps to file a partition action in West Virginia
If you inherited real property with one or more co-owners who refuse to cooperate, a partition action lets a court divide or sell the property and distribute the proceeds. In West Virginia, partition claims are brought in the circuit court in the county where the property sits. The court supervises the process, may appoint commissioners or a receiver, and issues a final decree dividing the land or ordering a sale.
1) Confirm ownership and legal status of the property
Before you file, gather documents that show who owns what interest: deeds, the decedent’s will or intestacy order, death certificate, probate court orders (if the estate was opened), county land records, mortgage statements, and tax bills. Determine whether ownership is tenancy in common or joint tenancy; inherited property will often be tenancy in common, which is subject to partition.
2) Try a voluntary resolution first
Many disputes resolve without court. Send a clear written demand proposing steps (buyout, division in kind, professional appraisal, or sale). Keep records of offers and responses. Courts often encourage settlement and may require proof you tried to resolve the issue.
3) Prepare and file a partition complaint in the appropriate West Virginia circuit court
When settlement fails, file a complaint for partition in the circuit court for the county where the property is located. The complaint typically must:
- Identify the property with a legal description.
- Name all persons with an ownership or recorded interest (all co-owners, lienholders, mortgagees, and anyone with recorded claims).
- State each party’s claimed ownership share and why partition is requested.
- Ask the court to order a partition in kind (division) or, if division is impractical, a sale and distribution of proceeds.
- Ask for appointment of commissioners or a receiver, if needed, and for other relief (accounting of rents/expenses, costs, and fees).
West Virginia’s statutory framework and practice for partition actions appears in the state code and circuit court practice (see West Virginia Code, partition provisions, and circuit court rules). You can review the West Virginia Code online: https://code.wvlegislature.gov/37/ and the state court rules at https://www.courtswv.gov/rules/.
4) Service of process and joining necessary parties
After filing, you must serve the complaint and summons on every owner and every recorded lienholder. If a party cannot be located, the court may permit substituted service or publication under the rules. Failure to join an interested party can delay or invalidate the partition.
5) Temporary relief while the case proceeds
You can ask the court for immediate relief if co-owners are damaging the property, refusing access, withholding rents, or causing waste. The court can appoint a receiver to collect rents, enter temporary orders allocating use or costs, or issue injunctions to protect value pending final resolution.
6) Appraisal, commissioners, and division or sale
If the court orders partition in kind, it will usually appoint disinterested commissioners (or a surveyor) to divide the land consistent with ownership shares. If safe and fair physical division is not feasible, the court will order sale of the property, typically by public auction or private sale, and then divide net proceeds after paying liens, taxes, costs, and commissions.
7) Accounting for liens, contributions, and adjustments
Before distribution, the court accounts for mortgages, recorded liens, unpaid taxes, necessary repairs, and improvements. Co-owners who paid more than their share (mortgage payments, taxes, repairs) may be entitled to a contribution or credit. The final decree explains how those amounts are handled.
8) Costs, fees, and timeframe
Partition actions can take several months to over a year depending on complexity, joinder issues, appraisal and sale scheduling, and appeals. Expect court filing fees, service costs, appraiser and surveyor fees, commissioners’ fees, and attorney fees. In some cases the court may award attorney fees against a party who unreasonably resists partition, but that depends on court findings and applicable rules.
9) Final decree and transfer
After division or sale and distribution, the court issues a final decree. Record the decree or sheriff’s deed in the county land records to clear title and effect transfers ordered by the court.
10) Practical considerations and next steps
Consider the tax consequences of a sale, potential capital gains, and possible offsetting basis adjustments. If the property is encumbered by liens or mortgages, coordinate with lenders; the court’s sale order and distribution will address lien priority and payoff. If a co-owner claims a homestead or another statutory exemption, raise that early, since exemptions can affect partition.
Where to read the law and find a lawyer
Look up West Virginia statutes and specific partition provisions here: https://code.wvlegislature.gov/37/. For court rules and filing procedures, see: https://www.courtswv.gov/rules/. To find a West Virginia-licensed attorney, see the West Virginia State Bar: https://wvbar.org/.
Helpful Hints
- Assemble title documents before you file: deeds, probate orders, death certificate, mortgage records, tax bills, and HOA records (if any).
- Put a written demand on the record and try mediation or an appraisal before filing — courts favor settlement and it can save time and cost.
- Identify and name everyone with an interest (all record owners, mortgagees, lienholders). Missing parties can delay the case.
- Ask the court for a receiver if the property produces rent or if a co-owner is causing waste or refusing access.
- Be ready to pay upfront costs (filing, service, appraisal). If you want the other co-owners to share costs, include that request in your complaint.
- Consider the pros and cons of partition in kind vs sale — dividing land can preserve sentimental or business value; sale is faster if division is impractical.
- Expect the court to order an appraisal or survey; don’t rely on a single private valuation when claims conflict.
- If a co-owner holds title as joint tenant with right of survivorship, confirm ownership status — a surviving joint tenant may own the property outright without partition.
- Get tax advice about potential capital gains and the timing of sale proceeds distribution.
- If you’re unsure how to proceed, contact a West Virginia attorney experienced in real property and partition actions — the WV State Bar can help locate counsel.
For step-specific help — drafting a complaint, calculating contributions, or preparing evidence — consult a West Virginia civil litigation attorney. The law and local practice affect timelines, fees, and remedies.