Partition Action Complaint - Virginia

VIRGINIA PARTITION ACTION — COMPLAINT FOR PARTITION OF REAL PROPERTY

IN THE CIRCUIT COURT FOR THE [COUNTY/CITY] OF [____________________], VIRGINIA

Case No.: [CL_-_______]

COMPLAINT FOR PARTITION OF REAL PROPERTY
(Va. Code § 8.01-81 et seq.)

COMES NOW Plaintiff, [PLAINTIFF NAME], by counsel, and for its Complaint for partition against Defendants states as follows:

I. PARTIES AND COTENANCY

1. Plaintiff [PLAINTIFF NAME] is [a resident of / a (entity type) organized under the laws of] [____________________], with a principal address at [________________________________].

2. Defendant [COTENANT DEFENDANT NAME] is, upon information and belief, [a resident of / a (entity type)] with a last known address at [________________________________].

3. "Unknown Parties" are persons or entities, including unknown heirs, devisees, successors, and assigns of any deceased record cotenant, whose identities or addresses cannot be ascertained through diligent inquiry.

4. Plaintiff and Defendants own the Property as cotenants in the following undivided fractional shares (the "Cotenancy"):

5. ☐ One or more cotenants acquired title from a relative, and the Property may constitute "heirs property" subject to the protections of Va. Code §§ 8.01-81.1, 8.01-83, 8.01-83.1, and 8.01-83.2.

II. JURISDICTION AND VENUE

6. This Court, having general equity jurisdiction, has jurisdiction over this partition action pursuant to Va. Code § 8.01-81 and § 17.1-513.

7. Venue is preferred in this Court under Va. Code § 8.01-261 because the real property at issue is located in [____________________].

III. THE PROPERTY

8. The real property that is the subject of this action (the "Property") is commonly known as:

Street Address: [________________________________]
City/County: [____________________], Virginia
Tax Map / Parcel ID: [________________________________]
Deed Book / Instrument No.: [________________________________]

9. The full legal description of the Property is attached as Exhibit A and incorporated herein by reference.

IV. NATURE OF TITLE AND RIGHT TO PARTITION

10. Plaintiff and Defendants hold record title to the Property as cotenants under the instrument(s) described in Paragraph 4, of record among the land records of the Clerk of this Court.

11. Plaintiff is a tenant in common / joint tenant / coparcener (or lien creditor / owner of an undivided estate) entitled to compel partition under Va. Code § 8.01-81.

12. The cotenants are unable to agree upon the use, management, or disposition of the Property, and no agreement, will, or instrument prohibits or restricts partition.

13. Plaintiff is entitled as a matter of right to partition of the Property.

V. PARTITION IN KIND OR BY SALE

14. ☐ Partition in kind. The Property is susceptible to a practicable physical division among the cotenants in proportion to their respective undivided shares, and partition in kind should be ordered under Va. Code § 8.01-81(A). In ordering partition in kind, the Court shall consider the factors set forth in Va. Code § 8.01-81(B), including: collective duration of ownership by a party and related predecessors; sentimental or ancestral attachment; lawful use being made of the Property; and the degree to which a party has contributed to its improvement, maintenance, or upkeep.

15. ☐ Allotment / owelty. If the Property cannot be divided into shares exactly proportionate in value, the Court may require one or more parties to pay owelty so that the partition in kind is just and proportionate, and/or may allot the Property (or a part) to one or more parties upon payment to the others pursuant to Va. Code §§ 8.01-81 and 8.01-83.1.

16. ☐ Partition by sale. The Property cannot be conveniently or practicably partitioned in kind without prejudice to the parties, and the interests of the parties will be best promoted by a sale and division of the net proceeds pursuant to Va. Code §§ 8.01-83 and 8.01-92.

17. Before ordering any sale, the Court shall determine value as provided in Va. Code § 8.01-81.1 (appointment of a disinterested licensed Virginia real estate appraiser unless the parties agree on value or the cost outweighs the evidentiary benefit) and shall afford the cotenants the opportunity to buy out the interest of any party requesting partition by sale as provided in Va. Code § 8.01-83.

VI. ACCOUNTING AMONG COTENANTS

18. An accounting and equitable adjustment among the cotenants is necessary and should be incorporated into the partition decree. The following credits, charges, and offsets are claimed:

a. ☐ Contributions. Sums advanced by Plaintiff for the common benefit, including [☐ mortgage principal and interest / ☐ real estate taxes / ☐ hazard insurance / ☐ necessary repairs and capital improvements / ☐ assessments], in the approximate amount of $[____________].

b. ☐ Rents and profits. Rents, profits, or the reasonable rental value of the Property received or enjoyed by a cotenant, in the approximate amount of $[____________].

c. ☐ Ouster. Defendant [____________________] has ousted or excluded Plaintiff from possession since [__/__/____], entitling Plaintiff to an offset for the reasonable rental value of Plaintiff's share during the period of exclusion.

d. ☐ Waste / diminution. Damage to or waste of the Property attributable to a cotenant, in the approximate amount of $[____________].

e. ☐ Owelty. Owelty payments necessary to equalize the value of in-kind allotments.

19. The Court should adjust each cotenant's distributive share of the Property (or of the net sale proceeds) to reflect the foregoing accounting.

VII. APPOINTMENT OF COMMISSIONERS / SPECIAL COMMISSIONER

20. Plaintiff requests that the Court appoint [commissioners in partition / a special commissioner] to view the Property, to make partition in kind where practicable, or to conduct any sale ordered by the Court and to report to the Court, as provided by Virginia partition practice and Va. Code §§ 8.01-83 and 8.01-92.

VIII. UNKNOWN PARTIES AND NOTICE

21. After diligent inquiry, the identities and/or addresses of certain Defendants cannot be ascertained, and Plaintiff will move for an Order of Publication pursuant to Va. Code § 8.01-316 and Rule 3:6.

22. ☐ If the Property is heirs property, a conspicuous sign shall be posted on the Property while the action is pending, as required by Va. Code § 8.01-83.2.

IX. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays this Court:

A. Determine the respective undivided interests of all parties in the Property;
B. Order partition of the Property in kind among the cotenants in proportion to their interests, with owelty as necessary, pursuant to Va. Code §§ 8.01-81 and 8.01-83.1;
C. In the alternative, if the Property cannot be partitioned in kind without prejudice, order the value determined under Va. Code § 8.01-81.1, afford the cotenants the buyout opportunity under Va. Code § 8.01-83, and order partition by sale and distribution of the net proceeds under Va. Code §§ 8.01-83 and 8.01-92;
D. Appoint commissioners or a special commissioner to effect the partition or sale and report to the Court;
E. Order an accounting among the cotenants and adjust the distributive shares for contributions, rents, ouster, waste, and owelty as set forth herein;
F. Award Plaintiff costs and reasonable attorney's fees as permitted by law and apportion the costs and expenses of partition among the parties in proportion to their interests; and
G. Grant such other and further relief as the Court deems just and proper.

Respectfully submitted,

[PLAINTIFF NAME], by counsel

[________________________________]
[ATTORNEY NAME], Esq. (VSB No. [_______])
[FIRM NAME]
[Address]
[Phone] | [Email]
Counsel for Plaintiff

VERIFICATION

COMMONWEALTH OF VIRGINIA
[CITY/COUNTY] OF [____________________], to-wit:

I, [PLAINTIFF NAME], being first duly sworn, depose and say: I am the Plaintiff in the above-captioned action; I have read the foregoing Complaint for Partition; and the facts stated therein are true to the best of my knowledge, information, and belief.

[________________________________]
[PLAINTIFF NAME]

Subscribed and sworn to before me this [__] day of [__________], 20[__].

[________________________________]
Notary Public
Registration No.: [________________]
My Commission Expires: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____] a true and correct copy of the foregoing Complaint for Partition was served upon the following, by [☐ personal service / ☐ certified mail, return receipt requested / ☐ service of process / ☐ order of publication], at the addresses below:

[________________________________]
[ATTORNEY NAME], Esq. (VSB No. [_______])
Counsel for Plaintiff

EXHIBIT INDEX

SOURCES AND REFERENCES

• Va. Code § 8.01-81 (Who may compel partition): https://law.lis.virginia.gov/vacode/title8.01/chapter3/section8.01-81/
• Va. Code § 8.01-81.1 (Determination of value): https://law.lis.virginia.gov/vacode/title8.01/chapter3/section8.01-81.1/
• Va. Code Title 8.01, Ch. 3, Art. 9 (Partition): https://law.lis.virginia.gov/vacodefull/title8.01/chapter3/article9/
• Uniform Partition of Heirs Property Act (background): https://www.uniformlaws.org/committees/community-home?CommunityKey=50724584-e808-4255-bc5d-8ea4e588371d

END OF VIRGINIA PARTITION ACTION TEMPLATE