ElderLaw News — The Estate Planning & Elder Law Firm, P.C. — MD, VA, DC
ElderLaw News

ElderLaw News is a weekly e-newsletter that brings you reports of legal developments and other trends of vital interest to seniors and their advocates. This newsletter is brought to you by The Estate Planning & Elder Law Firm, P.C., William S. Fralin, Esq., President.

Partition

Brandon, Matthew, and Madison are siblings who recently inherited real property after the death of their mother, their last living parent. The real property is located in Virginia and is the childhood home of Brandon, Matthew, and Madison.

Brandon, recently divorced, wants to live in the home and pay a discounted rent to Matthew and Madison. Brandon has made it clear that he has does not have the financial ability to purchase his siblings' shares of the property. After much debate and discussion, Matthew and Madison have decided they prefer to sell the home. Brandon refuses to agree to the sale of the home and has started to sleep in the home a few nights a week.

Virginia Code § 8.01-81 allows Matthew and Madison to petition the court to partition the real property they own as tenants in common with Brandon. A partition is the division between two or more persons of lands which they own as joint tenants or tenants in common. Compulsory partition or partition by a judicial proceeding is a division made by the court at the instance of one of the co-owners regardless of the wishes of other co-owners.

In Virginia there are three types of partition available to co-owners: division in kind, division by allotment, and division by sale. Division in kind is the division of the property itself among the co-owners. Therefore, after the division in kind, each previous co-owner would own a portion of the original property individually. In a partition by allotment the court awards full ownership of the land to a single owner or subset of owners and orders them to pay the person or persons divested of ownership for the property awarded. Partition by sale constitutes a forced sale of the land, followed by division of the profits among the tenants. If the court determines that the property cannot be conveniently partitioned by division in kind or by division by allotment, then a partition by sale can be ordered. The sale is made by a special commissioner appointed by the court for that purpose, and the sale is subject to confirmation by the court. The sale of property through a judicial proceeding must be made with the goal to obtain the best price, and to achieve this goal the sale must be conducted to encourage fair, open, and competitive bidding. After the sale is confirmed by the court, the proceeds from the sale will be distributed to the previous co-owners.

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The Estate Planning & Elder Law Firm, P.C. is an elder law firm. We represent older persons, disabled persons, their families, and their advocates. The practice of elder law includes estate planning, estate and trust administration, powers of attorney, advance medical directives, titling of assets and designations of beneficiaries, guardianships, conservatorships, and public entitlements such as Medicaid, Medicare, Social Security, and SSI, disability planning, income tax planning and preparation, care management, and fiduciary services. For more information about The Estate Planning & Elder Law Firm, P.C., please visit our website at http://www.chroniccareadvocacy.com.

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