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When co-owners of real property in Virginia cannot agree on selling real estate and the division of proceeds, they must turn to a Court-ordered judicial sale. The co-owners of property may not be intentional. They may be intestate heirs who have inherited an interest in the property through a relative dying without a will. They may be beneficiaries, under a will, who cannot agree on how to sell the property or dispute who has what interest. They could be former spouses who have divorced without having the property separated by the Court. Joint tenants and tenants in common must resort to Court-ordered sale if they cannot agree to terms of a sale. Partition would be the best way to protect an incompetent's interest if there are other owners.
Likewise, if some co-owners do not know who all of the other co-owners are or their whereabouts, partition suits are the vehicle to clear title and force a sale. As partition is a remedy of statute, the Legislature's directives must be strictly followed. The principal theory behind partition is to clear title and end disputes over real estate to the benefit of all co-owners. If none of the co-owners can or are willing to buy the others out, then the Court must determine the interests of the parties and appoint a Special Commissioner, usually an attorney familiar with the situation, to sell the property. A Court can order the sale of property at public auction, private contract, with or without a real estate agent, or a method of the Special Commissioner's choosing.
If one of the co-owners is living in the property, then that owner can be liable to the others for rent for the enjoyment of the property. The owners forcing the sale can be awarded their attorney's fees against the co-owners who are blocking the sale, those that cannot be found or those that want no involvement with the property.
Once a Special Commissioner is appointed to sell the property, all expenses of sale and the proceedings are paid pro rata from all the owners' shares and the proceeds are distributed according to the Court's ruling as to the ownership interests. Claims of third parties relative to the property can also be addressed by the Court, such as clouds on the title, access to the property, boundary lines and persons presumed dead. If all owners are not known, the attorney filing the suit will proceed with an Order of Publication to ensure that any potential owners are subject to the Court's Partition Order.
The sale is confirmed by the Court as well as the distribution of the proceeds. The entire process can take from eight months upward to two years, depending on the complexity of all the factors, the number of co-owners and the real estate market for the type of property being partitioned.
© 2022 Eugene W. Shannon, PLC
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