Detailed Answer

This section explains, in plain language, the typical steps to pursue a partition of real property in Delaware when a co-owner (including an heir) will not cooperate. This is an overview only and not legal advice. Laws and procedures vary by county and by court, so consult an attorney licensed in Delaware for case-specific guidance.

What is a partition action?

A partition action is a court process used to divide physical real property (partition in kind) or to order sale of the property and divide the proceeds among co-owners (partition by sale) when co-owners cannot agree. Co-owners include joint tenants, tenants in common, and heirs who inherit property ownership.

Who can start a partition action?

Any co-owner with a legal or equitable interest in the property may ask a court to partition the property. If you inherited property and your name appears as an owner (or the estate’s distribution made you an owner), you can typically file.

High-level steps to file and pursue a partition action in Delaware

1. Confirm ownership and collect documents. Gather deeds, the will or probate records, death certificate(s), recent tax bills, mortgage statements, title insurance policy (if any), and any documents showing each person’s share. Clear documentation of ownership will be essential in court.
2. Try to resolve the dispute without litigation. Send a written demand to the co-owner requesting partition or a buyout. Consider mediation, a formal buyout offer, or selling the property by mutual agreement. Courts generally appreciate attempts to settle before involving the judiciary.
3. Obtain a survey and preliminary valuation. Order a property survey and at least one appraisal or market analysis to understand physical boundaries, possible division, and market value. These documents help the court decide whether partition in kind is feasible or whether a sale is more appropriate.
4. Hire a Delaware attorney (strongly recommended). An attorney will identify the proper court, prepare the complaint, advise about local procedural rules, and handle service and litigation. If cost is an issue, ask attorneys about limited-scope representation or consult local legal aid resources.
5. Prepare and file the complaint for partition. The complaint typically names all co-owners and any lienholders, states your ownership interest, describes the property (legal description), and requests relief (partition in kind or sale and division of proceeds). The filing will go to the appropriate Delaware court; the exact court can vary depending on property value and local practice. See general Delaware judiciary resources at the Delaware Courts site: https://courts.delaware.gov.
6. Serve the complaint on all interested parties. You must properly serve the co-owners and any known lienholders. The court will not proceed until defendants are served according to Delaware rules of civil procedure.
7. Pretrial steps: pleadings, discovery, and motions. After service, parties exchange information (deeds, tax records, mortgage info, appraisals). Either side may seek temporary orders: for example, to preserve the property, protect rental income, or set an interim accounting. The court may also appoint a referee or commissioner to evaluate the property and report back.
8. Court evaluation and disposition (in kind or by sale). The court will consider factors such as whether the property can be physically divided without substantial injury to owners. If division in kind is possible, the court can order that. If not, the court will order a sale (often by sheriff or a court-appointed commissioner) and direct how to distribute net proceeds after liens, taxes, and costs.
9. Accounting and distribution. After sale, the court orders payment of liens (mortgage, tax liens), sale costs, and court costs, then divides the remaining proceeds among owners according to their legal shares. If one co-owner has paid more than their share for upkeep or mortgage, the court may adjust distributions based on equitable claims.
10. Post-judgment enforcement. If a co-owner resists complying with an order (for example, to convey title or vacate), the court may issue enforcement orders. If you win a sale order but a co-owner delays, you may need further motions for enforcement or turnover.

Practical documents and evidence you will need

• Recorded deeds and legal description of the property
• Probate documents (letters testamentary, estate distribution, if inheritance is involved)
• Title search or title insurance policy (if available)
• Survey, plot maps, and appraisals
• Morgage statements, tax bills, homeowners association statements
• Correspondence between co-owners (demand letters, offers to buy out)

Timeline and costs

Timelines vary. An uncontested partition can take a few months. Contested cases often take a year or more depending on discovery, whether the court orders a sale, and appeals. Costs include court filing fees, attorney fees, survey and appraisal fees, costs for commissioners or referees, and sale costs (auction or broker fees). Expect the process to be more expensive and take longer if your co-owner actively resists.

Potential defenses a non-cooperating owner may raise

• Claim that you lack standing or do not own the property interest claimed
• Asserting equitable claims (e.g., they paid more of the mortgage or made improvements)
• Claims tied to probate—arguing the estate has not properly been administered
• Statutes of limitation or laches in certain narrow circumstances
• Adverse possession arguments (rare in partition contexts where ownership is recorded)

Where to look for Delaware statutes and court rules

Delaware statutory and court information is available at the Delaware Code website and the Delaware Courts website. For general reference see the Delaware Code home page: https://delcode.delaware.gov and the Delaware Courts site: https://courts.delaware.gov. Local rules and procedures for filing civil actions (including those involving real property) are available through those sites. Because partition actions involve both property law and court procedure, you may need to review the relevant sections under property and civil procedure.

Important: The exact statutory sections and procedural steps can vary and may be updated. If you need citations to specific Delaware Code sections or local court rules that apply to partition, your attorney can provide precise, up-to-date statute links and cite the controlling provisions for your county and court.

Helpful Hints

• Document everything. Keep written records of communications, payments, and offers. Courts rely heavily on documentary proof.
• Consider a buyout. Offering a fair market buyout may be less costly and faster than litigation.
• Obtain a title report early. This exposes mortgages, liens, and encumbrances that affect distribution of sale proceeds.
• Use mediation. Many courts encourage or require mediation before trial. Mediation can preserve relationships and reduce costs.
• Budget for fees. Litigation costs can erode the net value received from any sale. Get cost estimates from attorneys and appraisers.
• Watch for tax consequences. Sale or distribution can trigger capital gains tax or other tax consequences; speak with a tax advisor.
• Be realistic about partition in kind. Many properties—especially single-family homes on one lot—cannot be divided without substantial harm; courts often order sale instead.
• Confirm proper service. If you cannot locate a co-owner, ask your attorney about substituted service or publication options under Delaware procedure.
• Consider temporary orders. If the property generates rental income or has ongoing mortgage obligations, ask the court for interim accounting or payment orders while the case proceeds.

Next Steps

If you decide to proceed, your immediate practical steps are: (1) assemble title/probate documents, (2) get a recent appraisal and survey, (3) attempt a written demand and settlement offer, and (4) consult a Delaware lawyer for next steps and to prepare and file a complaint if settlement fails. You can start by visiting the Delaware Courts website for court locations and filing information: https://courts.delaware.gov.