Partition Action Complaint - West Virginia

WEST VIRGINIA PARTITION ACTION — COMPLAINT FOR PARTITION OF REAL ESTATE

IN THE CIRCUIT COURT OF [____________________] COUNTY, WEST VIRGINIA

Civil Action No.: [________________]

Judge: [________________]

COMPLAINT FOR PARTITION

COMES NOW Plaintiff, [PLAINTIFF NAME], by counsel, and pursuant to W. Va. Code § 37-4-1 et seq. and W. Va. Code § 51-2-2, files this Complaint for partition of the real estate described herein, and in support states:

I. PARTIES, JURISDICTION, AND VENUE

1. Plaintiff is [☐ a resident of / ☐ a corporation organized under the laws of / ☐ a limited liability company with its principal place of business in] [____________________] County, [________________], with a mailing address of [________________________________].

2. Defendant [COTENANT DEFENDANT NAME] is, upon information and belief, [☐ a resident of / ☐ an entity with its principal place of business at] [________________________________].

3. The Unknown Defendants comprising the heirs, devisees, and assigns of [____________________], deceased, and all other persons claiming any interest in the real estate, are joined herein pursuant to W. Va. Code § 37-4-6. After diligent search and inquiry, Plaintiff is unable to ascertain the names, residences, or whereabouts of such persons.

4. This Court has subject-matter jurisdiction pursuant to W. Va. Const. art. VIII, § 6 and W. Va. Code § 51-2-2, and partition jurisdiction pursuant to W. Va. Code § 37-4-1.

5. Venue is proper in this County pursuant to W. Va. Code § 56-1-1 because the real estate that is the subject of this action lies wholly or partially within this County.

II. THE COTENANCY

6. Plaintiff and Defendants own the real estate described below as cotenants (the "Cotenancy") in the following undivided fractional shares:

7. Plaintiff is a tenant in common / joint tenant / coparcener of the real estate (or a lessee of mineral rights or qualifying stockholder under W. Va. Code § 37-4-1) entitled to compel partition.

III. THE REAL ESTATE

8. The real estate that is the subject of this action (the "Property") is located in [____________________] County, West Virginia, and is more particularly described as follows:

Legal Description:

[________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________]

Tax Map / Parcel No.: Map [______], Parcel [______], District [______________]

Street Address (if any): [________________________________]

County Commission Recording Reference: Deed Book [______], Page [______], or Document No. [________________], recorded [__/__/____].

9. ☐ The Property includes severed or reserved [mineral / oil and gas / coal / timber] interests. All owners of record of such interests are joined herein as required for partition affecting the subsurface estate.

IV. RIGHT TO PARTITION

10. Plaintiff and Defendants hold record title to the Property as cotenants under the instrument(s) described in Paragraph 6, of record in the Office of the Clerk of the County Commission of [____________________] County, West Virginia.

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

12. Plaintiff is entitled to partition of the Property pursuant to W. Va. Code § 37-4-1.

V. PARTITION IN KIND OR BY SALE

13. ☐ Partition in kind. The Property is susceptible to convenient partition in kind among the cotenants in proportion to their respective undivided shares, and partition in kind should be ordered. Two or more parties may, at their election, have their shares laid off together pursuant to W. Va. Code § 37-4-2.

14. ☐ Allotment. If partition cannot conveniently be made, the entire subject may be allotted to one or more accepting parties who pay the other parties the sums to which their interests entitle them. If the parties entitled to proceeds cannot agree on value, request the appraisal procedure stated in W. Va. Code § 37-4-3.

15. ☐ Partition by sale. Partition cannot conveniently be made; the interests of one or more persons entitled to the Property or its proceeds will be promoted by sale of the entire subject (or allotment of part and sale of the residue); and the interests of the other entitled persons will not be prejudiced. Plaintiff requests the findings required by W. Va. Code § 37-4-3 rather than presuming that sale benefits every party.

16. Any liens upon the Property or upon the interests of the parties shall be determined and provided for pursuant to W. Va. Code § 37-4-4, and any funds due to unknown or unlocatable interest owners shall be disposed of pursuant to W. Va. Code § 37-4-9.

VI. ACCOUNTING AMONG COTENANTS

17. 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 [☐ deed-of-trust principal and interest / ☐ real estate taxes / ☐ insurance / ☐ necessary repairs and improvements / ☐ assessments], in the approximate amount of $[____________].

b. ☐ Rents and profits. Rents, profits, royalties, or the reasonable rental value 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 (including unauthorized timbering or mineral extraction) attributable to a cotenant, in the approximate amount of $[____________].

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

18. 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

19. Plaintiff requests that the Court appoint commissioners (or a special commissioner) to view the Property, to make partition in kind where convenient, or to conduct any sale ordered by the Court, and to report to the Court, as provided under W. Va. Code § 37-4-1 et seq.

VIII. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays this Honorable 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 W. Va. Code §§ 37-4-2 and 37-4-3;
C. In the alternative, after making every finding required by W. Va. Code § 37-4-3—including that the other entitled persons will not be prejudiced—order the appropriate sale or partial allotment-and-sale and distribute proceeds according to the parties' interests;
D. Appoint commissioners or a special commissioner to effect the partition or sale and report to the Court;
E. Determine and provide for all liens upon the Property pursuant to W. Va. Code § 37-4-4;
F. Order an accounting among the cotenants and adjust the distributive shares for contributions, rents, ouster, waste, and owelty as set forth herein;
G. Award Plaintiff costs of suit, with the costs of suit and expenses of partition to come from the proceeds of any sale as provided in W. Va. Code § 37-4-1; and
H. Grant such other and further relief as the Court deems just and equitable.

Dated this [______] day of [____________________], 20[____].

Respectfully submitted,

[________________________________]
[Attorney Name], W. Va. State Bar No. [______]
[Firm Name]
[Address]
[City, State, ZIP]
Telephone: [(___) ___-____]
Email: [________________]
Counsel for Plaintiff

VERIFICATION

STATE OF WEST VIRGINIA )
) ss.
COUNTY OF [______________] )

I, [PLAINTIFF NAME], after being first duly sworn, depose and state under oath: I am the Plaintiff in the foregoing Complaint for Partition; I have read the Complaint; and the statements and allegations contained therein are true and correct to the best of my knowledge, information, and belief.

[________________________________]
[PLAINTIFF NAME], Plaintiff

Taken, subscribed, and sworn to before me this [____] day of [____________________], 20[____].

[________________________________]
Notary Public

My commission expires: [__/__/____]

CERTIFICATE OF SERVICE

I, the undersigned counsel for Plaintiff, hereby certify that on the [____] day of [____________________], 20[____], I served a true and correct copy of the foregoing Complaint for Partition upon the following, by [☐ personal service / ☐ certified mail, return receipt requested / ☐ service of process by the Sheriff / ☐ order of publication under W. Va. R. Civ. P. 4(e)], at the addresses below:

[________________________________]
[Attorney Name], W. Va. State Bar No. [______]
Counsel for Plaintiff

EXHIBITS

• Exhibit A: Legal Description of the Property
• Exhibit B: Deed(s) / Instruments Establishing Cotenancy and Shares
• Exhibit C: Title Examination / Opinion
• Exhibit D: Accounting Schedule (contributions, rents, ouster, owelty)
• Exhibit E: Survey / Plat (for in-kind division)
• Exhibit F: Mineral / Oil-and-Gas / Coal Ownership Schedule (if applicable)

PRACTICE NOTES (West Virginia)

• Court: Circuit Court of the county where the real estate lies (W. Va. Code §§ 37-4-1, 56-1-1).
• Partition by sale standard: Under W. Va. Code § 37-4-3, convenient partition must be unavailable, sale must promote the interests of one or more entitled persons, and the interests of the other entitled persons must not be prejudiced.
• No UPHPA: West Virginia has not adopted the Uniform Partition of Heirs Property Act; the heirs'-property appraisal/buyout procedures of UPHPA do not apply.
• Mineral severance: Many West Virginia partition disputes involve severed mineral, oil and gas, coal, or timber estates; all owners of record of those estates must be joined for relief affecting the subsurface.
• Unknown owners: Join and serve unknown owners under W. Va. Code § 37-4-6 and W. Va. R. Civ. P. 4(e); funds for unknown/unlocatable owners are handled under § 37-4-9.

SOURCES AND REFERENCES

• W. Va. Code § 37-4-1 (Who entitled to partition): https://code.wvlegislature.gov/37-4-1/
• W. Va. Code Chapter 37, Article 4 (Partition): https://law.justia.com/codes/west-virginia/chapter-37/article-4/
• W. Va. Code § 56-1-1 (Venue)
• W. Va. R. Civ. P. 4 (Process and service)
• Note: West Virginia has not enacted the Uniform Partition of Heirs Property Act (verified against Chapter 37, Article 4).

END OF WEST VIRGINIA PARTITION ACTION TEMPLATE