Detailed answer — how forced sale via partition works in Delaware

This section explains, in plain language, what a partition action does, when a court will order a sale rather than a partition in kind, and what you should expect if you are trying to force a sale because other co-owners won’t buy you out.

What a partition action is

A partition action is a lawsuit brought by one or more co-owners of real property asking the court to divide the property (partition in kind) or to sell it and divide the proceeds (partition by sale). Delaware state courts have authority to hear partition claims and to fashion equitable remedies when co-owners cannot agree on use, possession, or disposition of shared property. For general Delaware court information see the Delaware Courts site: https://courts.delaware.gov/ and the Delaware Code: https://delcode.delaware.gov/.

Which court files partition actions in Delaware

Most partition actions are filed in the Superior Court, although in certain equitable circumstances a party may seek relief in the Court of Chancery. The court you use will depend on the nature of the claim and the relief requested; a Delaware attorney can advise which forum is appropriate.

When will the court order a sale instead of dividing the land?

The court generally prefers dividing property in kind when that division is practical, fair, and preserves value for all owners (for example, where the land is easily divisible into separate parcels). The court will order sale when division in kind is not practical or would cause prejudice to the owners — for example, when the property is a single-family home on one lot, or when dividing would substantially reduce value. If co-owners cannot agree on a buyout and the property cannot be fairly divided, the court can order sale and distribution of net proceeds to the co-owners according to their ownership shares.

What happens during a partition-by-sale proceeding?

1. Filing: The plaintiff (a co-owner) files a complaint for partition naming all co-owners and persons with recorded interests (mortgagees, lienholders, tenants).
2. Service and response: All parties are served and can respond. The court may order conserved possession or accounting pending the outcome.
3. Investigation and accounting: The court may appoint a commissioner, master, or referee to evaluate the property, gather title information, and prepare an accounting of ownership interests, rents, liens, and expenses.
4. Valuation and sale method: If the court orders sale, it will direct how to market and sell the property — by public auction or private sale, sometimes using a court-appointed agent or sheriff.
5. Distribution: After sale, mortgage and lien priorities are paid, then costs and fees (including the commissioner’s fee and court costs). Net proceeds are distributed among owners by ownership share (unless the court finds a different equitable division is required due to contributions, improvements, or liens).

What if the other co-owners refuse to buy me out?

If co-owners refuse to buy your share, you can still force a sale by filing a partition action. The court can require sale even when no co-owner offers a buyout. The court does not need unanimity to order sale; a majority or even a single co-owner can seek partition through the courts.

Common practical and legal issues

• Mortgages and liens: Mortgages and recorded liens attach to the property and are typically paid from sale proceeds in priority order before distributions to owners.
• Possession and rents: If co-owners have unequal use or one co-owner possesses the property and excludes others, the court can order accounting for rents or an offset in distribution.
• Improvements and contributions: Parties who paid mortgages, taxes, or made improvements may ask the court to adjust distributions to reflect those contributions and expenses.
• Costs and attorneys’ fees: Courts may allocate costs and attorney fees between parties based on conduct, agreements, or equitable considerations. If a co-owner’s refusal to cooperate is unreasonable, the court can take that into account.

Hypothetical example

Suppose three co-owners hold title: A (50%), B (25%) and C (25%). A wants out and requests a buyout, but B and C refuse. A can sue for partition. If the court finds the house cannot be divided practically, it will order sale. After paying the mortgage and sale costs, the remaining proceeds are split 50/25/25 unless the court orders adjustments for prior payments or liens.

Key statutes and resources

Delaware’s statutes and court rules govern civil procedure and equitable remedies. For statutory text and to confirm specific statutory provisions, consult the Delaware Code: https://delcode.delaware.gov/. For court-specific procedures and forms, see the Delaware Courts site: https://courts.delaware.gov/. Because statutes and procedures change, always check the current code and court rules or ask a Delaware attorney to confirm the controlling law.

When you should get an attorney

Filing a partition action can require careful title work, pleadings that name all interested parties, proper notice to lienholders and tenants, valuations, and possible complex equitable arguments about contributions or liens. If money, title, or possession is at stake, consult a Delaware attorney experienced in real property litigation to protect your rights and prepare the case for the court.

Disclaimer: This article is for educational purposes only and is not legal advice. It does not create an attorney-client relationship. For advice about your specific situation, consult a licensed Delaware attorney.

Helpful Hints — Practical steps to force a sale and protect your interest

• Get the title history: Obtain the deed, recent title report, and identify mortgages, liens, or judgments that affect the property.
• Gather proof of ownership and contributions: Collect deeds, closing statements, mortgage payments, tax payments, and proof of improvements you paid for.
• Obtain an appraisal or market analysis: A current valuation helps the court and supports your request for sale rather than division.
• Consider mediation before filing: Courts often favor settlement; mediation can produce a buyout or agreed sale, saving time and costs.
• Name all interested parties: Include mortgage lenders, lienholders, tenants, and anyone with a recorded interest in the lawsuit to avoid later claims that parties were omitted.
• Preserve evidence of waste or exclusion: If a co-owner is damaging the property or denying access, document it; the court can account for losses.
• Budget for costs: Expect filing fees, appraisal costs, commissioner fees, and attorney fees; plan for the time the sale process can take.
• Ask about temporary relief: If you fear waste or loss (e.g., unpaid taxes, deliberate damage), ask your attorney about temporary injunctions, receivers, or an accounting pending the partition case.
• Be realistic about timelines: Partition cases can take months to a year or more depending on title issues, third-party claims, and the need to market the property for sale.
• Consult a Delaware attorney early: A lawyer can advise on forum selection (Superior Court vs. Chancery), drafting the complaint, and the best strategy to achieve a sale or a fair buyout.