Thomas H. Roberts & Associates, PC

Family Fights Over Inherited Real Estate - Rights, Rents, Costs, Attorneys Fees and Partition Suits

Family Fights Related to Property

Often a property is left to family which instead of loving gratitude ends up with bitter fighting.  So, what are the rights of the “tenants in common”?  Generally, speaking each co-tenant has an equal right to the whole property.

The right to possess the whole as well as each part.

Each tenant in common has the right to use any part of the property like each of the other tenants in common.  For one “tenant in common has a right to the possession of the whole, as well as each part.” Russell v. Allen, 3 Kernan 179; Early v. Friend, 57 Va. 21, 41 (1860).

A circuit judge in Chesterfield explained the law in 1990 as follows: Every tenant in common has the right to possess and enjoy the common property. Generally, a tenant in common is not accountable to his co-tenants for rents or profits, unless he has received more than his just share thereof. Earley v. Friend, 57 Va. 21 (1860). The Code of Virginia provides for a right of accounting in equity against a co-tenant for receiving more than his just share or proportion. Va. Code Ann., Section 8.01-31 (1950). In an action for accounting, it is an essential averment of the plaintiff that the defendant has received more than his just share or proportion. Earley, 57 Va. at 53. The co-tenant is accountable to other tenants in common whether he receives the rents from others or occupies the property exclusively. Where a tenant in common occupies and uses the common property so as to plainly indicate that he considers himself a renter and not merely a tenant in common, this is sufficient to maintain an action for accounting. Id. at 49. Schuller v. Davis, 21 Va. Cir. 199, 200 (Cir. Ct. 1990)

Accounting under 8.01-31

Code of Virginia 8.01-31 states as follows:

An accounting in equity may be had against any fiduciary or by one joint tenant, tenant in common, or coparcener for receiving more than comes to his just share or proportion, or against the personal representative of any such party.

Absent an agreement that one of the tenants in common pay rent, the mere fact that one lives in or uses the property does not entitle the other to rent.  The tenant wanting to obtain rent must show that the other received “more than comes to his just share or proportion”, stated another way, the tenant would have to show that he was excluded while the co-tenant enjoyed the property.  See Berry v. Fitzhugh, Va (2020).

Partition the property - Split or Sell the Property

Article 9 of Title 8.01 of the Code of Virginia , 8.01-81 et seq. provides the process for dividing or partitioning property.  In a  2020 case the Virginia Supreme Court focuses the attention upon the text of 8.01-92 which states,  “In any partition suit when there are unrepresented shares, the court shall allow reasonable fees to the attorney or attorneys bringing the action on account of the services rendered to the parceners unrepresented by counsel.”  Where there is no evidence that the unrepresented parceners were not adverse to the plaintiff no fees were awarded.  Berry v Fitzhugh _ Va_ (2020) See Patterson v. Old Dominion Tr. Co., 156 Va. 763, 774 (1931) (recognizing that, even where the actions of a plaintiff create a common benefit for all parties, attorney’s fees should not be awarded against a party whose interests are antagonistic to those of the plaintiff).