Real Property: Court orders partition by sale of real property

Where the circuit court ordered partition by sale, it did not err. Partition in kind cannot be conveniently made because the property was a residential townhouse. And the sale was in the parties’ best interest because it would resolve years of protracted litigation over the property, and both parties could recoup some of their investment.

Background

Jon F. Mains, Trustee/Executor for the Trust/Estate of L. Randolph Williams appeals the circuit court’s judgment granting John Birge’s petition for partition of a certain parcel of real property located in McLean, Virginia.

Jurisdiction

With certain inapplicable exceptions, Code § 17.1-405(A)(5) authorizes an aggrieved party to appeal from: “any interlocutory decree or order involving an equitable claim in which the decree or order (i) requires money to be paid or the possession or title of property to be changed or (ii) adjudicates the principles of a cause.”

Here, although the circuit court did not identify its Nov. 20, 2024, order as a final order, the order is, at a minimum, an order on an equitable claim requiring the title of property to be changed. Because the circuit court’s order involved an equitable claim and required title to be changed, jurisdiction is proper under Code § 17.1-405(A)(5).

Merits

Partition by sale requires satisfaction of two statutory prerequisites: “determining that partition in kind cannot be conveniently made,” and then “determining that sale will be in the best interest of all the parties.” Here, the circuit court did not err in finding satisfaction of the prerequisites to partition.

First, the parties conceded that partition in kind was not possible. The record supports that partition in kind was not possible because the property was a residential townhouse. Second, the record supports the circuit court’s finding that the sale was in the parties’ best interest. Sale would end years of protracted litigation over the property, and both parties could recoup some of their investment.

In addition, sale was the only practical way to divide interests given that neither party was willing to accept allotment at trial. Considering that allotment was not practical, the circuit court correctly ordered sale under Code § 8.01-83.1.

Mains’s argument that res judicata blocked partition is unavailing. The first action “dismissed Count 4 [partition] as being essentially abandoned” without any evidence presented. Thus, the identities of the remedies sought and pursued causes of action were different in the first action. And because Birge was a deeded 50 percent property owner, he maintained ownership rights to seek statutory partition rights under Code § 8.01-81.

Mains’s argument that laches barred partition also is unconvincing. Birge was within his rights as a tenant in common to bring a partition suit. In addition, Birge’s delay in seeking partition was reasonable, given that liens burdened the property during the first action.

Mains’s other equitable defenses also either fail or do not apply. First, the circuit court did not err in finding no unclean hands, as Birge operated within his rights as a tenant in common and had attempted to sell his interest to Williams. In addition, the statutory paradigm does not identify a defense of unclean hands.

Second, there was no unlawful collateral attack on a prior judgment; the first action focused on property ownership rights—not partition. Third, although Birge abandoned his partition claim in the first action, he did not lose his deeded property right to statutory partition. Fourth, antecedent breach is a contractual argument, but the dispute here involves statutory partition—not breach of contract.

Fifth, estoppel fails because the first action did not adjudicate the partition claim, and Williams did not prove the elements of estoppel. Sixth, there is no showing that Birge waived his deeded ownership rights recognized in the first action. Waiver requires intentional relinquishment of a known right, and there is no showing that Birge intended to relinquish his partition rights.

Expenses

Mains did not plead for an accounting or contribution and would not accept allotment, so the circuit court did not err in declining to award Mains’s alleged overpayment of expenses.

Evidence

Mains’s position that he lacked sufficient trial time due to Birge’s argument on the bench brief is not convincing. First, the circuit court kept track of each party’s time, and Mains used “substantially more time” overall than Birge. Mains also spent more than an hour arguing his own motion. And the circuit court did not abuse its discretion in declining to admit Mains’s proffered evidence because such evidence either was untimely, would have been inadmissible or would not have impacted the granting of partition.

Affirmed.

Mains v. Birge, Record No. 1991-24-4, Nov. 18, 2025. CAV (unpublished opinion) (Annunziata). From the Circuit Court of Fairfax County (Blanch). Jon F. Mains (Jon F. Mains & Associates, LLC, on briefs), pro se. Erik B. Lawson (Glenn H. Silver; Silver & Brown, P.C., on briefs), for appellee. VLW 025-7-336. 14 pp.