Code of Virginia

Code of Virginia
Title 8.01. Civil Remedies and Procedure
6/17/2019

Article 8. Actions for the Sale, Lease, Exchange, Redemption and Other Disposition of Lands of Persons under a Disability.

§ 8.01-67. Definitions; persons under a disability; fiduciary.

The terms "fiduciary" and "person under a disability" as used in this article shall have the meanings ascribed to them in § 8.01-2.

1977, c. 617.

§ 8.01-68. Jurisdiction.

Circuit courts in the exercise of their equity jurisdiction, upon being satisfied by competent evidence independent of the admissions in the pleadings or elsewhere in the proceedings, that one or more of the types of relief hereinafter specified will promote the interest of an owner of land, or any interest therein, who is a person under a disability as defined in this chapter for whom a conservator has not been appointed pursuant to Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2, and taking into consideration the rights of any other party interested in such land, may order the sale, exchange, lease, encumbrance, redemption, or other disposition of such real estate as to the court may seem just and equitable.

In the case of the sales of such lands or interest therein, the court shall be governed by the established practices for judicial sales generally except as they may be specifically modified by provisions of this article.

Code 1950, §§ 8-675, 8-677, 8-681, 8-682, 8-683; 1952, c. 360; 1977, c. 617; 1997, c. 921.

§ 8.01-69. Commencement of suit; parties.

Any of the relief specified in this article may be sought by bill in equity filed by a fiduciary, as defined in this article, or by any other person having an interest in the subject matter of the proceedings. A person under a disability, fiduciary, all those who would be the heirs or distributees of the defendant person under disability if he had died at the time of the commencement of this proceeding, except as provided in § 8.01-78, and all other persons interested in the subject matter of the proceeding, shall be made parties defendant when not parties plaintiff.

Code 1950, § 8-676; 1952, c. 360; 1972, c. 361; 1973, c. 338; 1977, c. 617; 1983, c. 459.

§ 8.01-70. Repealed.

Repealed by Acts 1990, c. 831, effective January 1, 1991.

§ 8.01-72. When death to abate such suit.

A suit instituted under this article shall abate by reason of the death of the person under a disability unless a sale, exchange, lease, encumbrance, redemption, or other disposition of real estate has been confirmed by a decree in such suit.

Code 1950, § 8-678; 1952, c. 360; 1977, c. 617.

§ 8.01-73. Guardian ad litem to be appointed.

In every suit brought under this article, a guardian ad litem shall be appointed for any person under a disability not otherwise represented by a guardian or committee, or trustee appointed pursuant to § 64.2-2003, and for all persons proceeded against by an order or publication under the designation of "parties unknown" as provided for in § 8.01-316. The guardian ad litem shall file an answer as such.

Code 1950, § 8-679; 1952, c. 360; 1972, c. 361; 1977, c. 617; 1997, c. 540.

§ 8.01-74. Leases on behalf of persons under disability; new leases.

A. Leases on behalf of persons under a disability. -- When a person under a disability is entitled to or bound to renew any lease, any fiduciary on behalf of such person under a disability or any other interested person may apply by motion after reasonable notice to parties having a present interest in the property to be leased, to the circuit court as prescribed in subdivision 3 of § 8.01-261, and by the order of the court any person appointed by it may, from time to time, surrender or accept a surrender of such lease, or take or make a new lease of the same premises for such term and with such provisions as the court directs. Such reasonable sums as are incurred to renew any such lease shall, with interest thereon, be paid out of the profits of the leasehold premises, and be a charge thereon until payment.

B. New leases. -- When it shall appear to a circuit court that the interests of a person under a disability will be promoted by the execution of a new lease, where no prior lease exists, any fiduciary or any other person interested in the subject matter may apply in like summary fashion as stated in subsection A of this section and upon showing to the satisfaction of the court that the provisions therein were complied with, including reasonable notice to parties having a present interest to the property to be leased, the circuit court upon the consideration of the probable length of the disability and the duration of the proposed lease, may order such lease to be executed. Such lease may be renewed or surrendered at any time pursuant to subsection A of this section and under such conditions as the court may direct.

Code 1950, § 8-674; 1952, c. 360; 1977, c. 617.

§ 8.01-75. Who not to be purchaser.

At any sale under this article neither a fiduciary for a person under a disability, as defined under this article, nor the guardian ad litem shall be a purchaser directly or indirectly; provided, however, such fiduciary may be a purchaser if the court finds that such a purchase by the fiduciary is in the best interests of the person under a disability.

Code 1950, § 8-684; 1977, c. 617; 1980, c. 346.

§ 8.01-76. How proceeds from disposition to be secured and applied; when same may be paid over.

The proceeds of sale, or rents, income, or royalties, arising from the sale or lease, or other disposition, of lands of persons under a disability, whether in a suit for sale or lease thereof, or in a suit for partition, or in condemnation proceedings, shall be invested under the direction of the court for the use and benefit of the persons entitled to the estate; and in case of a trust estate subject to the uses, limitations, and conditions, contained in the writing creating the trust. The court shall take ample security for all investments so made, and from time to time require additional security, if necessary, and make any proper order for the faithful application and safe investment of the fund, and for the management and preservation of any properties or securities in which the same has been invested, and for the protection of the rights of all persons interested therein, whether such rights be vested or contingent, but nothing hereinbefore contained shall prevent the court having charge thereof from directing such funds to be paid over to the legally appointed and qualified fiduciary, as defined in § 8.01-67, of the person under a disability, whenever the court is satisfied that such fiduciary has executed sufficient bond; or from applying at any time all or any portion thereof to the proper needs and requirements of the person under a disability. However, if such funds do not exceed the amount set forth in subsection B of § 8.01-606, the court, in its discretion and without the intervention of a fiduciary, may pay such funds to any person deemed appropriate by the court for the use and benefit of a person under a disability, whether such person resides within or without the Commonwealth. Such funds not in excess of the amount set forth in subsection B of § 8.01-606 shall, when paid over to such person deemed appropriate, be treated as personal property.

Upon request of the legally appointed and qualified fiduciary of the person under the disability or the guardian ad litem of the person under the disability, or upon the court's own motion, the court may order that such funds be distributed to a special needs trust as defined in § 64.2-779.10.

Code 1950, § 8-685; 1952, c. 360; 1968, c. 380; 1970, c. 355; 1972, c. 159; 1974, c. 139; 1977, c. 617; 1978, c. 419; 1981, c. 129; 2018, c. 124.

§ 8.01-77. What proceeds of sale to pass as real estate.

The proceeds received under the preceding provisions of this article or under Article 9 (§ 8.01-81 et seq.) of this chapter, from the sale or division of real estate of a person under a disability or so much thereof as may remain at such person's death, if such person continue until death incapable from any cause of making a will, shall pass to those who would have been entitled to the land if it had not been sold or divided.

Code 1950, § 8-689; 1952, c. 360; 1968, c. 66; 1977, c. 617.

§ 8.01-78. Alternate procedure for sale of real estate of person under disability.

If the personal estate of any person under a disability for whom a fiduciary has been appointed under any of the provisions of Title 37.2, be insufficient for the discharge of his debts or if the personal estate or residue thereof after payment of debts and the rents and profits of his real estate be insufficient for his maintenance and that of his family, if any, the fiduciary of his estate may petition a circuit court for authority to mortgage, lease or sell so much of the real estate of such person as may be necessary for the purposes aforesaid, or any of them, setting forth in the petition the particulars and amount of the estate, real and personal, and a statement of the application of any personal estate, and debts and demands existing against the estate. Those persons who would be heirs or distributees of the person under a disability if he had died at the time of commencement of the proceeding need not be made parties defendant to a proceeding pursuant to this section.

Code 1950, § 8-689.1; 1952, c. 360; 1977, c. 617; 1983, c. 459.

§ 8.01-79. Same; reference of petition to commissioner.

On the presenting of such petition it may be referred to a commissioner in chancery or to a special commissioner appointed by the court, to inquire into and report upon the matters therein contained, whose duty it shall be to make such inquiry, to give notice to and hear all parties interested in such real estate and to report thereon with all convenient speed.

Code 1950, § 8-689.2; 1977, c. 617.

§ 8.01-80. Same; action of court on report; application of proceeds of transaction.

If upon the filing of the report and examination of the matter it shall appear to the court to be proper, an order shall be entered for the mortgaging, leasing, or sale, on such terms and conditions as the court may deem proper, of so much of such real estate as may be necessary; but no conveyance shall be executed until such shall have been confirmed by the court. The proceeds of such transactions shall be secured and applied under the order of the court.

Code 1950, § 8-689.3; 1977, c. 617.

The chapters of the acts of assembly referenced in the historical citation at the end of these sections may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.

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