Partition Suits in Virginia
Many people find themselves at the end of a relationship or marriage in a situation where they are still co-owners of a property. Often, it is a house that a couple or former couple jointly owns. While it is possible for both of you to agree to sever the title, there is also a legal remedy if one person refuses to transfer title. A court will typically not remove someone from title that is validly acquired outside of divorce, but will instead, partition the property during partition suits in Virginia.
What Is A Partition? Types of Partitions
A partition is a legal action where one person asks the court to divide real property. The court can physically divide the property. Under the Virginia Code Sec. 8.01-81, Think of a 40-acre farm, where both people would get 20 acres. This is called a partition in kind. However, it is generally impossible to partition a house in kind. Therefore the court will partition the property by judicial sale. This means that the house will be sold, and the proceeds divided between the parties. Determining how much is owed to each individual can be difficult and result in protracted litigation. (For more on property division during a divorce see our previous blog)
What If I Am Still Married?
If you are seeking a partition action while you are still married, a court can partition property incidental to divorce. Once a divorce is finalized, you will automatically become “tenants in common” with your ex, and then either party can bring a partition action. (See our previous blog for more on this).
What About Our Mortgage?
Virginia is a “title theory” state. This means that your mortgage lender actually holds the title to your property until the mortgage is paid off. However, the mortgage lender cannot bring a partition suit. Their remedy would be foreclosure. If you have your property partitioned, you will still be liable for the mortgage, and it will have to be paid by the proceeds of the judicial sale. If the judicial sale does not cover the balance of the mortgage, the mortgage lender can file a deficiency judgment against you personally to recover the outstanding balance.
Take all the guesswork out of your real estate transaction by relying on our Fairfax real estate lawyers from Keithley Law, PLLC. We help homeowners, real estate agents, buyers, sellers, and even homeowners’ associations overcome any obstacles encountered during a real estate transaction. Call (703) 454-5147 to learn more about our real estate law services.