Detailed Answer: What a partition action is and when to use it

A partition action is a court process that divides co-owned real property among owners or forces the sale of the property and divides the proceeds. If you inherited a partial interest in family land and co-owners will not agree to sell or buy you out, a partition action is the usual legal route to obtain a sale and your share of the value.

Who can file?

Any person who owns an interest in real property in Delaware — for example, an heir who inherited a fractional interest — may file for partition. Most inherited interests are held as tenants in common, which gives each co-owner the right to seek partition.

Where to file

File the partition action in the Delaware court that has jurisdiction over civil property actions for the county where the property is located. Many partition matters are handled in the Delaware Superior Court. See Delaware Courts for local filing rules and contact information: https://courts.delaware.gov/superior/ . For statutory reference on property law generally see the Delaware Code: https://delcode.delaware.gov/title25/ .

Basic steps to bring a partition action in Delaware

1. Gather documents and confirm ownership. Collect the deed(s), the will or probate records showing the inheritance, the death certificate, property tax bills, mortgage statements, and any leases or agreements that affect the property. A current title report or abstract is very helpful.
2. Try a pre-filing resolution. Before filing, send a written demand asking co-owners to agree to sell, buy out your interest, or agree to a partition procedure. Courts often view attempts to settle favorably. Consider mediation or a valuation appraisal to facilitate agreement.
3. Prepare and file the complaint for partition. The complaint should identify the parties, describe the property (include a legal description), state each plaintiff’s ownership interest, and request that the court either (a) order a physical division of the land (partition in kind) if practical, or (b) order a sale of the property and division of proceeds (partition by sale). The complaint typically asks the court to appoint a commissioner or master to oversee the partition or sale and to determine costs and distribution of proceeds.
4. Serve defendants and respond to defenses. Serve all co-owners and any lienholders with the complaint. Defendants can answer, assert counterclaims (for example, to prevent sale), or raise title issues. If a defendant fails to answer, you may seek default relief under Delaware court rules.
5. Court investigation and possible hearing. The court may hold a hearing to resolve disputes about ownership, valuation, liens, and whether the property should be partitioned in kind or sold. The court may order appraisals, accounting for rents, or other discovery.
6. Commissioner/master and sale procedure. If the court orders sale, it will typically appoint a commissioner, master, or sheriff to conduct the sale according to court directions. The sale is often at public auction, but the court can approve other sale methods if appropriate. Sale proceeds pay liens, taxes, sale costs, and court costs; the remainder is distributed among owners according to their interests and any equitable adjustments the court orders.
7. Distribution and closing. After sale and payment of obligations, the court signs an order directing distribution of proceeds. Co-owners receive their share after costs and liens. If one co-owner bought out others, the court will enter the necessary conveyance or decree.

Common legal issues and complexities

• Mortgages and liens: Mortgages attach to the property and typically must be satisfied from sale proceeds.
• Title clouds and adverse claims: Disputes over who owns what share or whether an interest was severed may require additional litigation.
• Life estates, trusts, or prior agreements: Interests created by will, trust, or agreement may change who can partition and how proceeds are shared.
• Costs and timing: Partition actions can be costly and take many months or longer, depending on contested issues and the need for appraisals or discovery.
• Tax consequences: A sale may create capital gains tax for the sellers. Consult a tax advisor before final sale.

What the court can order

The court can:

• Order a physical division of the land (rare when the parcel is a single house lot).
• Order a sale of the property and distribution of proceeds.
• Allocate sale costs, taxes, and creditor liens against proceeds.
• Order an accounting for rents and profits if someone has occupied the property or collected income.

Practical tips on timing and costs

Expect several months to over a year for a partition case, depending on whether the matter is contested. Costs include court filing fees, service fees, appraisal and advertising costs for the sale, and attorney fees. Courts sometimes order the losing or noncooperative party to pay certain costs, but parties often split costs from proceeds.

Where to find statutes and court rules

Delaware property law and related statutes are contained in the Delaware Code (Title 25 covers real property matters): https://delcode.delaware.gov/title25/ . For filing, procedures, and local rules see the Delaware Superior Court website: https://courts.delaware.gov/superior/ .

Helpful Hints

• Gather these documents before you file: deed(s), probate/estate papers, death certificate, mortgage statements, tax bills, leases, surveys, and any written communications with co-owners.
• Try negotiation first. A written demand and a neutral appraisal can lead to a buyout without litigation.
• Get a current title search or abstract to identify mortgages, liens, and other encumbrances before filing.
• Consider mediation. Courts often encourage or require mediation, which can save time and money.
• Ask about a partition-by-sale versus partition-in-kind. Courts prefer in-kind only when division is practical without unfairness; otherwise they will order sale.
• Be prepared for costs and timelines. Understand likely expenses (appraisals, advertising, commissioner fees, attorney fees) and that proceeds are paid after these costs and liens are satisfied.
• Get legal help early. A Delaware real property attorney can prepare the complaint, identify necessary parties, and advise on the best strategy for preserving your share and minimizing costs.
• Check tax consequences. Selling inherited property may have capital gains or estate tax implications — consult a CPA or tax attorney.