How partition actions work in West Virginia
Short answer (high-level)
If co-owners of inherited real property refuse to respond, a co-owner can ask a West Virginia circuit court to divide the property or order it sold and distribute the proceeds. West Virginia law allows the court to proceed even if some co-owners cannot be found or do not participate, using substituted service or service by publication and entering default orders against nonresponding parties. See West Virginia Code Chapter 38 for the statutory rules on partition.
Not legal advice: This article explains general West Virginia law and practical steps only. Consult a West Virginia attorney to apply the law to your situation.
What is a partition action?
A partition action is a court lawsuit asking the court to divide property held by two or more people (often tenants in common). The court can either physically divide the land among owners (partition in kind) or order the property sold and distribute the sale proceeds (partition by sale). Partition actions are governed by state statute and civil procedure rules. For West Virginia statutes on partition, see West Virginia Code, Chapter 38: https://www.wvlegislature.gov/WVCODE/ChapterEntire.cfm?chapter=38.
Who may file?
Any person with an ownership interest in the property—commonly a tenant in common or a person who inherited an interest—may file a partition complaint in the circuit court where the property is located. Executors or personal representatives sometimes file on behalf of an estate if the estate still owns the property.
Key documents and facts to gather first
- Deed(s) showing current owners and shares.
- Death certificates and wills or probate records showing how ownership passed.
- Mortgage statements, property tax bills, HOA information, and liens.
- Recent property survey, parcel ID, and local address.
- Records of contact attempts (letters, emails, certified mail) to unresponsive co-owners.
Step-by-step: Filing when some owners won’t respond
- Confirm who must be named. Name every person who might claim an ownership interest (all co-owners, heirs, devisees listed in wills, and any recorded lienholders). Omitting a known owner can jeopardize the final result.
- Attempt reasonable contact first. Send certified letters, emails, and phone calls asking them to cooperate. Courts look favorably on good-faith efforts to resolve disputes before litigation.
- Prepare and file a complaint for partition in the county circuit court where the land lies. The complaint should identify the property, list owners and their claimed shares, describe efforts to resolve the matter, and state the relief requested (partition in kind or sale). You will pay the filing fee or ask for fee waiver if eligible.
- Serve all defendants according to West Virginia rules. If a co-owner cannot be located for personal service, the court may allow substituted service or service by publication. West Virginia civil procedure rules and local practice determine publication mechanics; see West Virginia Rules of Civil Procedure resources at the West Virginia Judiciary site for guidance: https://www.courtswv.gov/legal-community/court-rules/index.html. If service by publication is authorized, notices run in an approved newspaper and a copy may be posted at the courthouse.
- If defendants do not answer, seek default. After proper service and the statutory waiting period, file for default against nonresponding parties. The court can enter default and proceed without the input of missing owners.
- Court decision: division or sale. The judge may appoint commissioners to survey and recommend a fair division. If physical division is impractical or unfair, the court can order a sale and direct how to divide proceeds among co-owners.
- Final judgment and deed. After commissioners complete division or after sale, the court enters a final order and issues the necessary deed or order of distribution. Court-ordered sales typically convey clear title, protecting the purchaser and dividing proceeds among owners and lienholders per the judgment.
Dealing with unknown heirs, missing owners, or parties who won’t cooperate
When owners cannot be located, the court can allow service by publication and still proceed. If the court cannot determine all heirs, it may appoint a guardian ad litem or a curator to represent unknown or incapacitated parties. If an owner is merely uncooperative, the court can enter a default judgment after proper notice and move forward with partition or sale. Because procedures and notice requirements are strict, proof of service and publication is critical.
Practical considerations and common complications
- Mortgages and liens: A partition sale does not eliminate valid liens. Lenders should be notified; proceeds usually pay liens first.
- Taxes and costs: Court costs, sale expenses, and any property taxes are deducted from sale proceeds before distribution.
- Timing: Partition cases can take several months to over a year depending on complexity, locating parties, and whether a sale is required.
- Title problems: Quiet title or additional actions may be needed if ownership records are unclear.
- Alternative solutions: A buyout agreement, voluntary sale, or mediation can save time and cost. Courts often encourage settlement before ordering a sale.
Hypothetical example
Anna, Ben, and Carlos inherit a 10-acre parcel. Anna wants to sell; Ben wants to keep his share; Carlos moved out of state and doesn’t respond to letters. Anna files a partition complaint in the county circuit court. She names all three heirs and a bank with a recorded mortgage. Anna shows proof of certified mail to Carlos and asks the court for substituted service when the mail is returned. The court authorizes publication. Carlos does not appear. The court appoints three commissioners who report a sale is preferable; the court orders a sale at public auction. After lien payoffs and costs, the court distributes net proceeds according to each owner’s share.
Helpful hints
- Start with a clear title search and death/ probate records to identify all possible owners before filing.
- Document all communication attempts—courts require proof you tried to reach missing owners.
- Consider an appraisal early to set realistic expectations about sale vs. division.
- Ask the court to appoint a receiver if the property is being damaged, generates rental income, or needs maintenance while the case proceeds.
- If a co-owner is a minor or incompetent, request appointment of a guardian ad litem to protect that owner’s rights.
- Talk with a West Virginia real estate or probate attorney before filing to evaluate alternatives and comply with local practice standards.
Where to find official sources
- West Virginia Code, Chapter 38 (partition statutes): https://www.wvlegislature.gov/WVCODE/ChapterEntire.cfm?chapter=38
- West Virginia court rules and local procedure information: https://www.courtswv.gov/legal-community/court-rules/index.html