In 2020, Virginia revised its partition laws by incorporating provisions of the Uniform Partition of Heirs Property Act (“UPHPA”). In doing so, it sought to mitigate the inequitable procedures that often plagued these judicial proceedings – mainly those dealing with partitioning heirs’ property. You may be wondering: What are partition suits? What is heirs’ property? How do they connect with right-of-way acquisitions? Well, here is a brief overview.

As an initial matter, partitioning is the legal process in which co-owners of real property divide the land. Virginia’s partition laws are located in Code § 8.01-81, et seq. Heirs’ property is land that is typically inherited by multiple family members (“heirs”) through intestate succession. This results in a fractionalized ownership amongst the heirs, where each individual owns an undivided interest in the whole of the property as tenants in common. One aspect about partition suits that reign true pre- and post- UPHPA is that any co-owner of heirs property may initiate this legal proceeding. It does not matter if all of the heirs are not known or if the majority do not wish to seek partition. Once initiated, partitions by sale were often favored, which typically lent itself to having the property sold at auction to a third party at below fair market value. Now, the heirs are without land and sufficient compensation for it. This type of loss disproportionately impacted disadvantaged communities, particularly African Americans. Thus, the need for the UPHPA was apparent. In Virginia, through these new provisions, safety measures have been implemented, and courts must follow certain procedures before a partition by sale may occur.

The Safety Measures:

  1. Value Determination: The court must appoint a disinterested real estate appraiser unless the parties agree on the property’s value or the evidentiary value of an appraisal is outweighed by the cost of the appraisal itself. Code § 8.01-81.1.
  2. Hierarchy: The statute is written to ensure that a partition by sale is the last resort. If at least one co-owner brings a partition suit, the court must give the other co-owners an opportunity to buy out the co-owner. Moreover, before allotment or sale, the court must first determine that partition in kind is not practicable. If multiple parties want to purchase the whole property, the court is required to consider several factors (e.g., sentimental attachment, duration of family ownership, etc.). Code § 8.01-83.
  3. Notice: A conspicuous sign shall be posted on the property subject to the action while the case is pending. Code § 8.01-83.2.

(That said, there are many situations that can play out with partition suits. Therefore, if you are a co-owner of heirs’ property in the midst of one of these actions, it may be beneficial to seek an attorney.)

Now, how does this intersect with right-of-way acquisitions?  At its core, right-of-way acquisitions involve the negotiation of just compensation. This poses challenges for right-of-way agents when dealing with owners of heirs’ property. The fractured ownership often leads to the scenario that no one person is the designated representative of the property, thereby hindering potential settlement opportunities. One possible solution for a co-owner of heirs’ property faced with a right-of-way acquisition is to initiate a partition suit, seeking to buy out the other co-owners. If successful, it would give the now sole owner of the land the ability to reach an agreement with the right-of-way agent and sign off on it. Although a viable option, keep in mind the often quick timelines for right-of-way acquisitions – which may not align with the time it takes to proceed through a partition suit – and the expense of buying out all other co-owners.

Heir property is a much deeper subject than just a short blog post; if you want to take a deeper dive, our friends over at the Infrastructure Junkies! podcast get into the subject much further in their new episode “Heir Property: So MUCH MORE Than A Land Title Issue!”

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Diamond Royster is a Pender & Coward attorney with the firm’s Eminent Domain / Right of Way and Local Government practice groups, who focuses her practice on civil litigation, local government, eminent domain/right of way, and waterfront law matters.  Prior to joining the firm, Diamond served as a law clerk for the Honorable Cleo Powell of the Supreme Court of Virginia.