What steps are required to initiate or consent to a partition action before a court-appointed commissioner in West Virginia?

Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance on your specific situation.

Detailed Answer

A partition action allows co-owners of real property in West Virginia to divide or sell the property when they cannot agree on use. West Virginia’s partition statutes appear in W. Va. Code §38-1-1 et seq. Here are the key steps to initiate or consent to a partition before a court-appointed commissioner:

1. Confirm Co-Ownership and Basis for Partition

Any co-owner with a legal interest—tenancy in common or joint tenancy—can file. Ensure you hold title and that another co-owner resists voluntary division.

2. Prepare and File the Partition Complaint

File a complaint in the circuit court of the county where the property lies. The complaint must:

• Identify all co-owners by name and interest.
• Describe the real estate with a legal description.
• State whether you seek a physical division (“partition in kind”) or sale (“partition by sale”).
• Request appointment of a commissioner if parties cannot agree on division.

Statutory reference: W. Va. Code §38-1-1 (code.wvlegislature.gov/38-1-1).

3. Serve Process on All Co-Owners

After filing, serve each co-owner with a summons and copy of the complaint under the West Virginia Rules of Civil Procedure. This ensures all parties have notice and an opportunity to respond.

4. Responding Co-Owners May Consent

A co-owner who agrees to the complaint can file a written consent or join the plaintiff’s petition. By doing so, they waive the right to object and speed up the process. The court then moves directly to appointing a commissioner.

5. Court Appointment of Commissioner

If any co-owner opposes—through defense or silence—the court appoints a commissioner under W. Va. Code §38-1-23 (code.wvlegislature.gov/38-1-23). The commissioner is typically a local surveyor or real estate professional.

6. Commissioner’s Report and Sale or Division

The commissioner surveys the property and attempts a physical division per any parties’ agreement. If in-kind division is impractical, the commissioner sells at public auction and holds proceeds in court. The commissioner then files a report detailing the division or sale and distribution of proceeds per ownership shares.

7. Court Confirmation

After review, the court confirms the commissioner’s report and issues a final decree. Co-owners receive deeds for their divided parcels or checks distributing sale proceeds, less any costs and fees.

Helpful Hints

• Review your deed to confirm tenancy type and ownership interests.
• Consider a boundary survey before filing to identify any encroachments.
• Discuss a negotiated settlement or mediation to avoid the costs of sale.
• Track all filing fees, commissioner fees, and publication costs to deduct from proceeds.
• Prepare for timelines: partition actions can take several months to resolve.
• Keep copies of all court filings, service receipts, and commissioner reports.
• Consult a West Virginia real estate attorney to navigate procedural rules and protect your interests.