Fox & Moghul - Real Estate
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This is a very common question pertaining to the relative rights between unmarried couples who co-own property. In other words, home ownership among nonmarried couples. Typically, a boyfriend-girlfriend decide to buy real estate together and the deed lists both of them as co-owners of the property.

Soon, things go south and the parties start fighting over whatever property they shared or owned. In this case, the issue of which party or parties are signatories to the mortgage is also important in determining what the relative rights of the parties are in this scenario. If you are on title to a property with your ex-significant other (“Ex”), you hold title as either tenants in common or joint tenants with rights of survivorship. If the time has come to separate oneself from such joint ownership, the law affords a statute that can be used to achieve that end (Va. Code § 8.01-81 to § 8.01-93). In the event a co-owner wants to extract himself from title, a partition can be accomplished in one of three ways. However, a fourth option exists, defined below.

1)    Partition – Virginia Code § 8.01-81.

If the land is capable to be split into multiple sections for each co-owner, the action is called a suit for Partition.  This is because the single parcel of land can be divided into partitions and each co-owner will keep one of the partitions.  This is normally applicable when there is a large parcel of land that can be divided with new boundary lines established and the new parcels given to the co-owners. Of course, when the property is a single-family residence such as a condominium or stand-alone home, partition is not possible.  In this situation a partition is deemed ‘inconvenient’ and one of the other following options may be chosen.

2)    Allotment – Virginia Code § 8.01-83. 

The second way that you can divest yourself of your co-ownership is called allotment.  In this situation one or more of the co-tenants agree to purchase the share of the other co-owner(s) that wish to be released from title.

3)    Sale to a Third Party

In the event that neither can afford or are willing to purchase the other’s interest in the property, the Court can order that the property be advertised on the market to third parties, sold and the proceeds be distributed to the co- owners according to their share of ownership. The problem with a lawsuit for partition, allotment or sale is that it requires the filing a lawsuit in the Circuit Court which is expensive.

4)    Settlement and Deed Transfer for Consideration.

In the event your Ex says he/she will not cooperate, you need to inform him/her of the following truth: There is no right to halt or stop a suit in Partition. Once filed, the property will be bought by one of you or it will be sold to a third party. You should have your Ex consult with an attorney so the facts of the situation can be conveyed. It is far less expensive for the parties to reach a settlement and do a simple deed transfer for consideration, that is, one party buys out the other partys equity in the property for fair market value, rather than litigate the issue through a partition action. We at Fox & Moghul handle partition suits on a regular basis and would be happy to discuss the situation with you.  Please call us if you have further questions.  However, as stated above, this process is expensive for both the Plaintiff and the Defendants. Avoiding the inevitable through a settlement will serve everyone’s best interest.

Fox & Moghul - Real Estate

Fox & Moghul 3871 Plaza Drive Fairfax, VA 22030 Phone: 703-686-5406 Fax: 866-451-9531 Map & Directions

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