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Virginia Supreme Court: Unrepresented Parties Who Benefit From Partition Not Responsible For Plaintiff’s Attorneys Fees

It is not uncommon for one party to spearhead a lawsuit that benefits others who are not represented in the litigation.  This scenario is often the case in partition actions involving inherited real property.  In Berry v. Fitzhugh, the Virginia Supreme Court upheld the denial of attorney’s fees to the plaintiff from other owner’s shares of the property on the grounds that the attorney’s services were not rendered to the other owners.

The Facts Of Berry v. Fitzhugh

In 2012, five siblings – Marsha, Gregory, Lisa, Rodney, and Marilyn – inherited real property in Virginia from their mother.  When they inherited the property, Gregory was living in the basement, and Marilyn was living in the main level.  Marilyn moved out in 2013, and Lisa moved into the main level of the property.  Marsha and Rodney never lived in the property.

In 2018, Marsha brought a partition action, and named her four siblings as defendants.  Gregory and Lisa (the “represented siblings”) opposed the action and were represented by counsel.  Marilyn and Rodney (the “unrepresented siblings”) did not file any pleadings opposing Marsha’s complaint and appeared pro se at trial.

During her closing argument at trial, Marsha requested that upon the sale of the property that her attorney’s fees “be shared by the unrepresented parties in this case pursuant to Virginia Code § 8.01-92.”  She also requested that all of her remaining costs in bringing the partition action be paid out of the proceeds of the sale.

The trial court ordered the property sold, and that the proceeds be split equally among all five siblings, finding that Marsha had not adequately proven that the distribution should be uneven because of the represented siblings occupation of the property.

With regard to Marsha’s request for attorney’s fees, the trial court stated:

I don’t think it’s fair for two people that were on a different side as pro se, unrepresented by counsel, [to] have to pay for services rendered to the opposing side. So I’m not going to require attorney’s fees on that matter. All parties will pay their own attorney’s fees.

What Is A Partition Suit In Virginia?

Tenants in common, joint tenants, executors with the power to sell, and coparceners of real property can bring a partition action in Virginia.  Virginia Code 8.01-81.  Partition can be ordered in kind, or the property can be ordered sold, with the proceeds being distributed amongst the owners.

Partition is commonly used for inherited real property, where many people who never wanted to own real  property together, end up owning real property together.  A Virginia partition action is a vehicle to force the sale of the property so that heirs do not have to own real property together if they do not want to.

Are Attorneys Fees In Virginia Partition Actions Shared Equally Among The Owners?

No, attorney’s fees are not automatically shared amongst the owners.  The general rule for attorney’s fees is that each party is responsible for their own attorney’s fees.  The Virginia Code has a special provision for unrepresented shares in a partition action.  Virginia Code § 8.01-92 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.

Marsha relied on section 8.01-92 to argue that the trial court was required to award her attorney’s fees out of her unrepresented siblings’ shares.  Marsha urged that services were rendered to her unrepresented siblings, because they received the benefit of her partition action (their proceeds of sale).

Does Receipt Of A Benefit Mean That Services Were Rendered?

The Virginia Supreme Court focused on the distinction between receipt of a benefit and the rendition of services.  The Court cautioned that while receiving a benefit can indicate services were rendered, it is not a foregone conclusion, because such an approach omits any consideration of the parties’ interests in the outcome of the litigation.

The Virginia Supreme Court cited to Patterson v. Old Dominion, a 1931 Virginia Supreme Court case where the Court recognized 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.

In affirming the judgment of the trial court, the Virginia Supreme Court stated:

Here, Marsha offered no evidence that her unrepresented siblings supported her partition suit.  Since Marsha was the party claiming the attorneys fees, Marsha bore the burden of presenting evidence that her unrepresented siblings supported her partition suit and persuading the trial court that she was entitled to fees under the statute.  Marsha did not rebut the court’s implicit ruling that the unrepresented siblings’ interests were antagonistic to hers.

The Virginia Supreme Court interpreted the trial court’s statement that “two people that were on a different side as pro see” to mean that the unrepresented siblings were antagonistic to Marsha, the plaintiff.  It seems just as logical to view their presence as defendants in the case as a product of having to be named parties, as owners of the inherited real property, and not wanting to join in as plaintiffs or hire an attorney to bring the lawsuit.  Presence as defendants does not necessarily mean that they were antagonistic to Marsha, or did not invite the result of the suit.

Does An Owner-Tenant Automatically Owe Rent To The Other Owners In A Virginia Partition Action?

The Virginia Supreme Court also affirmed the trial court’s decision in refusing to award the fair rental value of the Property to the siblings not in possession of the property from the siblings in possession.

The trial court refused to award fair rental value because:

  1. The evidence was insufficient to establish that the other siblings were excluded from the Property.
  2. The siblings never had any formal agreement regarding rent.
  3. Lisa and Gregory paid for the maintenance and care of the Property.


The Virginia Supreme Court stated:

Here, the trial court’s reliance on the fact that Lisa and Gregory paid for the upkeep and care of the Property provides a sufficient basis for its ruling. The trial court clearly determined that the amount Lisa and Gregory spent maintaining the Property essentially offset any rent that they may have owed to the other siblings. Such a determination would provide a separate and independent legal basis for affirming the trial court’s ruling on this issue. Accordingly, the trial court’s refusal to award fair rental value will be affirmed.

Partition actions for inherited property can get complicated when there are many owners, some of whom live in the property, and some who just want to sell it and get the proceeds.  Even though it seems reasonable that the person seeking partition should not have to bear all of the attorney’s fees when the co-owners benefited from the action, unless you can prove that the services were rendered to those co-owners, you might be left totally responsible under Virginia law.


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