Virginia Lawyers Weekly

A family fight over the proposed breakup of a showplace cattle farm in Northern Virginia may be headed for the Supreme Court of Virginia. One family member argues that the courts should not force her to share the cost of subdivision preparations when she never agreed with her siblings’ plan to split up the property.

Nestled in the rolling hills of Loudoun County, the 350-acre “Mountain Gap Farm” was home for the family of Dr. Aaron W. Christensen, a former public health physician who died in 2003. On his death, the property was owned by his four children, partly though inheritance and partly through a family limited partnership. Unfortunately, the siblings could not agree what to do with the family farm.

To maximize the sale value of the property, three of the four children sought to develop the entire farm into a 68-lot subdivision. The lone holdout was daughter Mary Villon de Benveniste, a portrait painter who now lives in Paris, France. According to her pleadings, Mary always wanted to have the farm divided four ways among the Christensen children and to have one of those lots for herself.

While the family was at odds over what to do with the home place, the other siblings grew concerned that time would run out on their hopes for subdividing the land. Loudoun County elected officials were considering “downzoning” to help control growth in the county. A downzoning plan, if approved by county leaders, would limit the size of lots and cut the potential value of the property almost in half, according to one expert’s figures.

Acting without Mary’s written consent, the three siblings spent about $650,000 to get county approval of a subdivision plan for the property, protecting the family’s right to split the land into as many as 68 parcels. Mary claims that she steadfastly opposed that subdivision plan and the costs involved. Her siblings argue that Mary was equivocal about her wishes and gave mixed signals about the family’s development plan.

Loudoun County Circuit Judge Burke F. McCahill heard evidence over three days in March and decided that the property could not be conveniently cut into equal-value quarters. McCahill also determined that the subdivision plan added value to the property, and he charged Mary one quarter of the cost – about $147,000 – “to avoid unjust enrichment.”

Under Virginia law, a court can force a co-owner of property to share in the costs of improvements on the property even if the improvements were constructed by another co-owner without consent.

In her petition for appeal to the Supreme Court, Mary argued that the rule for contribution among co-tenants should not apply because the subdivision plan was not a “permanent” improvement. She also seeks to overturn the judge’s ruling because, she claims, her siblings did not have “clean hands” in acting without her approval.

Leesburg attorney Michael C. Whitticar, representing the other siblings, insisted Mary should be required to pay her share of the subdivision plan. “This improvement would have been permanent if she had cooperated and gone along with the subdivision process,” Whitticar said.

Whitticar said the issue is whether one co-tenant with a 25 percent interest can stand as a “roadblock” to the other owners’ plan to improve and develop the property.

It now appears that neither subdivision plan will be necessary, the lawyers say. The question of subdivision, either in quarters or in 68 small lots, was resolved when a willing buyer recently agreed to take the property as a whole, according to Mary’s lawyer, John A.C. Keith of Fairfax. Keith said that the circuit court has authorized the sale of the farm for $6 million.

The only issue now before the Supreme Court is whether Mary can be made to pay for the subdivision preparations that she did not agree to and that ultimately proved unnecessary. The petition for appeal and brief in opposition have been filed, but, at press time, the court had not set a date for a writ panel hearing.

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