VIRGINIA PROPERTY PARTITION LAW
How To File a Partition Action in Virginia to Divide Real Estate
In Virginia, if more than one party owns a piece of property jointly, each owner has the right to partition the property to separate their interest from the interests of the other owners. This can be done voluntarily, if all the parties and their legal representatives can negotiate a contractual agreement that will govern the disposition or division of the property. However, if they cannot come to an agreement, then the partition can be enforced by a court of law through a partition action.
Under VA code, in a real estate partition suit there are two primary ways to divide property. It can be divided through a partition in kind or through a partition by sale. A partition in kind is a physical “carving out” or separate parcels of property for each owner to have. This is usually reserved for large tracts of vacant land. In residential or business property with a building or structure, the partition is usually a partition by sale, where the property is sold at auction and the proceeds are divided. In Virginia, there are three different types of tenancies, and the type of tenancy determines how the land or proceeds are split. If they are joint tenants, it is split equally. If they are tenants in common, it is split according to their percentage of interest. If they are tenants by the entirety, it is split according to the divorce settlement.
Virginia is a title theory state, which means that any lender with a mortgage on the premises has title to the property though a deed of trust. This makes a lender a necessary party to any partition litigation. Even though they are a party, they cannot force a partition themselves, as their specific remedy is foreclosure.