Partition Suit

Partition Suit

Partition is a court-ordered division of real estate owned by two or more people.1

Dilapidated and vacant properties are often owned by multiple people or multiple organizations. Working with multiple owners, each with limited investment or interest in a property, is more complicated than working with one owner. While a partition action is not a tool frequently used by local governments, it is occasionally used to clear title when a local government holds partial title.

No Prerequisites

Advantages

  • Can clear disputes over property ownership and clarify ownership rights and responsibilities
  • May consolidate title, allowing the property to be put to productive use
  • Clears title to the property

Disadvantages

  • Only a co-owner of property can petition a court for partition
  • No guarantee the court will grant partition
  • The community must pay legal fees to go through the partition process
    Tom Whittier, Counsel for the City of Spencer, says, I see how partition can be valuable in this context, but most communities in West Virginia do not have the resources to commit to the process.
  • An interested party may be outbid by other owners
  • Heirs who have been living on land for generations may lose title to family land (See Section on Heirs Property)

West Virginia utilizes three types of partition:

Partition in kind is the division of the property itself. For example, if one person owns 40% and another owns 60% of a ten-acre property, the court could give four acres to the first owner and six acres to the other. Partition in kind is not always this straightforward, however. For example, if the ten-acre property includes a nice home, one owner might be given half an acre and the home, while the other is given the remaining nine and a half acres. Partition in kind is the preferred method of partition.

Partition by allotment occurs when one owner is willing to buy out some or all of the other owners’ interest in a property. 2

Partition by sale means a property is sold and the proceeds from the sale are split between the owners in proportion to their interests. 3 If a property is worth $100,000, an owner with a 40% interest would be given $40,000 and an owner with a 60% interest would be given $60,000. Note, however, that the costs of the partition action and the costs of the sale would be deducted from the sale amount prior to dividing the proceeds. Partition by sale may only occur where partition in kind and partition by allotment would not be practical, convenient, or fair. 4 In practice, however, courts generally order partition by sale. 5


1 59 Am. Jur. 2D Partition § 1 (2015).
2 Id.
3 Id.
4 Id. (may not be “conveniently made” and “if the interests of one or more 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, and the interest of the other person or persons so entitled will not be prejudiced thereby”).
5 Unif. Partition of Heirs Prop. Act, Prefatory Note, at 2 (2010); Phyliss Craig-Taylor, Through a Colored Looking Glass: A View of Judicial Partition, Family Land Loss, and Rule Setting, 78 Wash. U.L.Q. 737, 753–55 (2000). In ordering partition by sale, courts most often order a sale by public auction. Unif. Partition of Heirs Prop. Act, Prefatory Note, at 2.

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