Code of Virginia

Code of Virginia
Title 8.01. Civil Remedies and Procedure
8/10/2020

Article 9. Partition.

§ 8.01-81. Who may compel partition of land; jurisdiction; validation of certain partitions of mineral rights; when shares of two or more laid off together.

Tenants in common, joint tenants, executors with the power to sell, and coparceners of real property, including mineral rights east and south of the Clinch River, shall be compellable to make partition and may compel partition, but in the case of an executor only if the power of sale is properly exercisable at that time under the circumstances; and a lien creditor or any owner of undivided estate in real estate may also compel partition for the purpose of subjecting the estate of his debtor or the rents and profits thereof to the satisfaction of his lien. Any court having general equity jurisdiction shall have jurisdiction in cases of partition, and in the exercise of such jurisdiction, shall order partition in kind if the real property in question is susceptible to a practicable division and may take cognizance of all questions of law affecting the legal title that may arise in any proceedings, between such tenants in common, joint tenants, executors with the power to sell, coparceners and lien creditors.

Any two or more of the parties, if they so elect, may have their shares laid off together when partition can be conveniently made in that way. If the court orders partition in kind, the court may require that one or more parties pay one or more parties' amounts so that the payments, taken together with the court-determined value of the in-kind distributions to the parties, will make the partition in kind just and proportionate in value to the fractional interests held. If the court orders partition in kind, the court shall allocate to the parties that are unknown, unlocatable, or the subject of a default judgment a part of the property representing the combined interests of such parties as determined by the court, and such part of the property shall remain undivided.

All partitions of mineral rights heretofore had are hereby validated.

Code 1950, § 8-690; 1964, c. 167; 1968, c. 412; 1977, c. 617; 1984, c. 226; 2020, cc. 115, 193.

§ 8.01-81.1. Determination of value.

A. Except as otherwise provided in subsections B and C, the court in every partition action shall order an appraisal pursuant to subsection D, and such appraisal shall inform the court's determination of fair market value under subsection F. The expense of the appraisal shall be taxed as costs.

B. If all parties have agreed to the value of the property or to another method of valuation, the court shall adopt such value or the value produced by the agreed-upon method of valuation.

C. If the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, shall enter an order to determine the fair market value for the property.

D. If the court orders an appraisal, the court shall appoint a disinterested real estate appraiser licensed in the Commonwealth to assist the court in determining the fair market value of the property assuming sole ownership of the fee simple estate. Upon completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court and shall, within three business days of such filing, mail a notice of filing to all counsel of record stating:

1. The appraised fair market value of the property;

2. That the appraisal is available at the clerk's office; and

3. That a party may file with the court an objection to the appraisal not later than 30 days after the notice is sent, stating the grounds for the objection.

E. If an appraisal is filed with the court pursuant to subsection D, the court shall conduct a hearing to determine the fair market value of the property not sooner than 31 days after a copy of the notice of the appraisal is sent to each party under subsection D, whether or not an objection to the appraisal is filed under subdivision D 3. In addition to the court-ordered appraisal, the court may consider any other evidence of value offered by a party.

F. After a hearing under subsection E, but before considering the merits of the partition action, the court shall enter an order determining the fair market value of the property.

2020, cc. 115, 193.

§ 8.01-82. Repealed.

Repealed by Acts 2020, cc. 115 and 193, cl. 2.

§ 8.01-83. Allotment to one or more parties, or sale, in lieu of partition.

A. If at least one party to a partition action petitions the court for allotment or for a partition sale, the court may order allotment pursuant to this section or, if the court determines allotment is not practicable, a sale pursuant to § 8.01-83.1.

B. Before a court is authorized to allot or sell an undivided interest in a partition action, it shall first determine that partition in kind cannot be practicably made. When the subject land is not susceptible to a practicable division in kind, the court shall next consider an allotment of the entire subject property to any one or more of the parties who will accept it for a price equal to the value determined pursuant to § 8.01-81.1, and pay therefor to the other parties such sums of money as their interest therein may entitle them to receive, notwithstanding that any of those entitled may be a person with a disability. If a purchaser is entitled to a share of the proceeds of the sale, the purchaser is entitled to a credit against the price in an amount equal to the purchaser's share of the proceeds. The court shall make distribution of the proceeds of the allotment according to the respective rights of those entitled, taking care, when there are creditors of any deceased person who was a tenant in common, joint tenant, or coparcener, to have the proceeds of such deceased person's part applied according to the rights of such creditors.

1. When the court considers allotment, it shall require the party or parties seeking allotment to notify all of the other parties (i) that the property may be allotted to any one or more of them who is willing to accept it and (ii) of the required price.

2. In the event that multiple parties seek allotment and disputes arise concerning such allotment, the court shall consider the following in making such allotment:

a. Evidence of the collective duration of ownership or possession of the property by a party and one or more predecessors in title or predecessors in possession to the party who are or were related to the party or each other;

b. A party's sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the party;

c. The lawful use being made of the property by a party and the degree to which the party would be harmed if the party could not continue the same use of the property;

d. The degree to which the parties have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property; and

e. Any other relevant factor.

The court shall not consider any one of the preceding factors to be dispositive without weighing the totality of all relevant factors and circumstances.

3. After the court determines which party or parties will participate in the allotment, the court shall notify all the parties of its decision and of the amount each party is to pay or receive for its allotted share pursuant to either this subsection or subsection C. The court shall set a date, not sooner than 60 days after notification to the parties, by which each party allotted a share of the property must pay the amount due to the court. If any party allocated a share fails to pay the amount due by the required date the court shall order a sale of the entire subject property pursuant to § 8.01-83.1, unless the court determines, based on the factors in this subsection, that it will allow another party or parties to acquire such share by paying for such share within a reasonable period of time set by the court.

C. If the court determines that such allotment of the entire subject is not practicable or is not equitable, and if the interest of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, or allotment of part and sale of the residue, the court, notwithstanding any of those entitled may be a person under a disability, may order such sale, or an allotment pursuant to subsection B of a part thereof to any one or more of the parties who will accept it and pay therefor to the other parties such sums of money as their interest therein may entitle them to, and a sale of the residue. The price for the part of the property allotted to one or more parties shall be the fair market value of such part as determined by the court unless all the parties agree to a value for the part, which the court shall adopt. The sale of the residue shall be conducted pursuant to § 8.01-83.1. The court shall make distribution of the proceeds of the allotment and sale of the residue, according to the respective rights of those entitled, taking care, when there are creditors of any deceased person who was a tenant in common, joint tenant, or coparcener, to have the proceeds of such deceased person's part applied according to the rights of such creditors.

D. If the court determines neither allotment of the entire subject property nor of a party of the subject property is practicable or equitable, it shall order a sale pursuant to § 8.01-83.1.

Code 1950, § 8-692; 1950, p. 467; 1977, c. 617; 2020, cc. 115, 193.

§ 8.01-83.1. Open-market sale, sealed bids, or auction.

A. If the court orders a sale of property in a partition action under the provisions of § 8.01-83, the sale shall be an open-market sale unless the court finds that a sale by sealed bids or at auction would be more economically advantageous and in the best interests of the parties as a group.

B. If the court orders an open-market sale and the parties, not later than 10 days after the entry of the order, agree on a real estate broker licensed in the Commonwealth to offer the property for sale, the court shall appoint the broker and establish a reasonable commission. If the parties do not agree on a broker, the court shall appoint a disinterested real estate broker licensed in the Commonwealth to offer the property for sale and shall establish a reasonable commission. The broker shall offer the property for sale in a commercially reasonable manner at a price no lower than the determination of value and on the terms and conditions established by the court, including setting a reasonable time for marketing the property at its court-determined value pursuant to § 8.01-81.1.

C. If the broker appointed under subsection B obtains within a reasonable time an offer to purchase the property for at least the determination of value:

1. The broker shall promptly file a report containing (i) a description of the property to be sold to each buyer; (ii) the name of each buyer; (iii) the proposed purchase price; (iv) the terms and conditions of the proposed sale, including the terms of any owner financing; (v) the amounts to be paid to lienholders; (vi) a statement of contractual or other arrangements or conditions of the broker's commission; and (vii) other material facts relevant to the sale; and

2. The court shall hold a hearing to approve the same and shall appoint a special commissioner to make the sale and execute the deed pursuant to Article 11 (§ 8.01-96 et seq.).

D. If the broker appointed under subsection B does not obtain within a reasonable time an offer to purchase the property for at least the determination of value, the court, after a hearing, may:

1. Approve the highest outstanding offer, if any;

2. Redetermine the value of the property and order that the property continue to be offered for an additional period of time; or

3. Order that the property be sold by sealed bids or at auction.

E. If the court orders a sale by sealed bids or at auction, the court shall set terms and conditions of such sale by sealed bids or an auction.

F. If a purchaser is entitled to a share of the proceeds of the sale, the purchaser is entitled to a credit against the price in an amount equal to the purchaser's share of the proceeds.

2020, cc. 115, 193.

§ 8.01-83.2. Notice by posting.

If the plaintiff in a partition action seeks an order of publication pursuant to § 8.01-316, the plaintiff, not later than 10 days after the court's determination, shall post and maintain while the action is pending a conspicuous sign on the property that is the subject of the action. The sign shall state that the action has commenced and identify the name and address of the court and the common designation by which the property is known. The court may require the plaintiff to publish on the sign the name of the plaintiff and the known defendants.

2020, cc. 115, 193.

§ 8.01-83.3. Commissioners.

If the court appoints commissioners pursuant to Article 11 (§ 8.01-96 et seq.), each commissioner, in addition to the requirements and disqualifications applicable to commissioners in Article 11, shall be disinterested and impartial and not a party to or participant in the action.

2020, cc. 115, 193.

§ 8.01-84. Application of proceeds of sale to payment of lien.

When there are liens on the interest of any party in the subject so sold, the court may, on the petition of any person holding a lien, ascertain the liens, and apply the dividend of such party in the proceeds of sale to the discharge thereof, so far as the same may be necessary.

Code 1950, § 8-693; 1977, c. 617.

§ 8.01-85. Disposition of share in proceeds of person under disability.

The court making an order for sale shall, if a party to the sale be a person under a disability, order any dividend of the sale to be disposed as the proceeds of a sale under the provisions of § 8.01-76 are required to be invested.

Code 1950, § 8-694; 1952, c. 249; 1968, c. 381; 1977, c. 617; 2018, c. 124.

§ 8.01-86. Repealed.

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

§ 8.01-87. Validation of certain partitions prior to act of 1922.

All partitions heretofore had, when the proceedings conformed to the law as it existed prior to the amendment of § 5281 of the Code of 1919 by an act approved March 27, 1922, although they did not conform to such section as it read under the amendment of 1922, as aforesaid, are hereby validated; but nothing in this validating section shall be construed as intended to affect vested rights.

Code 1950, § 8-696; 1977, c. 617.

§ 8.01-88. Decree of partition to vest legal title.

A decree heretofore or hereafter made, confirming any partition or allotment in a suit for partition, shall vest in the respective co-owners, between or to whom the partition or allotment is made, the title to their shares under the partition or allotment, in like manner and to the same extent, as if such decree direct such title be conveyed to them and the conveyance was made accordingly.

Code 1950, § 8-698; 1977, c. 617.

§ 8.01-89. When proceeds of sale deemed personal estate.

The proceeds of any sale made under § 8.01-83 shall, except as provided in § 8.01-77, be deemed personal estate from the time of the confirmation of such sale by the court.

Code 1950, § 8-699; 1977, c. 617.

§ 8.01-90. When name or share of parties unknown.

If the name or share of any person interested in the subject of the partition be unknown, so much as is known in relation thereto shall be stated in the bill.

Code 1950, § 8-700; 1977, c. 617.

§ 8.01-91. Effect of partition or sale on lessee's rights.

Any person who, before the partition or sale, was lessee of any of the lands divided or sold, shall hold the same of him to whom such land is allotted or sold on the same term on which by his lease he held it before the partition.

Code 1950, § 8-701; 1977, c. 617.

§ 8.01-92. Allowance of attorneys' fees out of unrepresented shares.

In any partition suit when there are unrepresented shares, the court shall allow reasonable fees to the attorney or attorneys bringing the action on account of the services rendered to the parceners unrepresented by counsel.

Code 1950, § 8-701.1; 1950, p. 96; 1977, c. 617.

§ 8.01-93. Partition of goods, etc., by sale, if necessary.

When an equal division of goods or chattels cannot be made in kind among those entitled, a court of equity may direct the sale of the same, and the distribution of the proceeds according to the rights of the parties.

Code 1950, § 8-702; 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.

The Virginia General Assembly is offering access to the Code of Virginia on the Internet as a service to the public. We are unable to assist users of this service with legal questions nor respond to requests for legal advice or the application of the law to specific facts. Therefore, to understand and protect your legal rights, you should consult an attorney.

The Code of Virginia online database excludes material copyrighted by the publisher, Michie, a division of Matthew Bender. Copyrighted material includes annotations and revisors' notes, which may be found in the print version of the Code of Virginia. Annotated print copies of the Code of Virginia are available in most Virginia public library systems, from LexisNexis (1-800-446-3410), and from West, a Thomson-Reuters business (1-800-344-5008).