Disclaimer: This is general information and not legal advice. Laws change and every case is different. Consult a Delaware attorney to apply these concepts to your situation.
Understanding partition lawsuits under Delaware law
If you inherited real property with relatives and they refuse to agree on what to do with it, you can ask a court to force a split or sale through a partition action. Partition actions are equitable remedies that allow co-owners (commonly tenants in common) to divide property in kind or, if division is impractical, order a sale and distribution of proceeds. Delaware handles equitable cases through its Court of Chancery, and civil courts also have roles depending on the relief requested. For general state law resources, see the Delaware Code and the Delaware Courts pages: https://delcode.delaware.gov/ and https://courts.delaware.gov/ (Court of Chancery: https://courts.delaware.gov/chancery/).
When a partition action is appropriate
- You inherit land that is co-owned with one or more relatives (often as tenants in common).
- Your co-owners refuse to sell, buy you out, or otherwise agree on use or disposition.
- The property cannot be divided informally or through voluntary sale and settlement.
Detailed answer — step-by-step process to start and pursue a partition action in Delaware
1. Confirm who legally owns the property
Gather the deed(s), death certificate, will or probate documents, and any estate administration paperwork. If the property remains in the decedent’s name because the estate hasn’t been probated, you may need to handle probate first so title passes to the heirs. Clear, recorded title documents will show whether owners hold as joint tenants, tenants in common, or by another form of ownership—partition actions typically apply when owners hold separate undivided interests, as with tenants in common.
2. Try negotiation and informal resolution first
Delaware courts generally favor voluntary settlement. Send a clear written demand that describes your requested outcome (sale, division, or buyout) and propose mediation or a formal settlement conference. Document all communications. If relatives ignore or refuse reasonable offers, you have stronger grounds to file a lawsuit.
3. Choose the correct court and decide your requested relief
Partition is an equitable remedy. In Delaware, equitable matters are often heard in the Court of Chancery; some partition matters may also be pursued in Superior Court depending on the relief sought and the circumstances. If you need injunctions (to stop waste or to maintain the property), the Court of Chancery is typically the right forum. Consult local court rules or an attorney for the best venue. See Delaware Court of Chancery: https://courts.delaware.gov/chancery/.
4. Prepare the complaint for partition
A partition complaint must identify the property with a legal description, name all co-owners and anyone with an interest (mortgagees, lienholders), state facts showing your ownership interest and that co-owners refuse to agree, and ask the court to:
- order partition in kind if the property can be fairly divided, or
- order partition by sale if division in kind is impractical, and
- appoint commissioners or a master to value and divide/sell the property, and
- determine accounting for liens, taxes, and costs, and distribute net proceeds accordingly.
5. File and serve the complaint
File the complaint in the chosen Delaware court and serve it on all defendants (co-owners and parties with recorded interests). Delaware court rules govern service methods and timeframes. If some parties are unknown or cannot be located, the court may permit service by publication in limited circumstances.
6. Seek immediate relief if needed
If co-owners threaten to waste, remove structures, or impair value, request temporary relief (an injunction or restraining order) to preserve the property while the case proceeds. This is especially important if the property generates income or is at risk of deterioration.
7. Discovery, appraisal, and evaluation
Parties will exchange information about title, encumbrances, taxes, mortgages, and the condition of the property. The court may appoint a neutral appraiser or commissioners to value the property and recommend whether partition in kind is feasible. If division in kind is possible, the appraiser will propose a physical division and reflect each owner’s share. If not, the court usually orders a public sale.
8. Partition in kind vs. partition by sale
If the court finds the land can be divided fairly and without substantial prejudice to owners, it may order partition in kind. For many residential or irregular parcels, physical division is impractical; the court will then order a sale (often by auction or sheriff’s sale) and distribute the proceeds after paying liens, taxes, and costs.
9. Accounting and distribution
The court will settle accounts: pay mortgages and liens from sale proceeds (or allocate responsibility before division), deduct court and appraisal costs, and divide the remainder among co-owners by ownership percentage. The court may adjust for unequal contributions to taxes, improvements, or maintenance if equitable adjustments are warranted.
10. Settlement or buyout opportunities
Before a sale is finalized, many cases settle. You can negotiate a buyout where one owner purchases others’ interests at an agreed price or according to the appraisal. Mediation often produces better economic outcomes than litigation.
11. Enforcement and final judgment
After the court issues final orders (division, sale, or distribution), obtain any deeds or sale confirmations required to transfer title or disburse funds. If a party disobeys, you can seek enforcement through contempt or supplementary proceedings under Delaware court rules.
Common practical issues for inherited property
- If the estate hasn’t been probated, the executor or personal representative may first need to transfer title through probate before co-owners can be sued in their individual capacities.
- Mortgages and tax liens survive inheritance. The court will account for them and may require mortgage payoff or assumption at sale.
- Improvements paid for by some co-owners can lead to equitable adjustments. Keep receipts and records.
- Adverse possession claims or unrecorded agreements by co-owners can complicate partition—expect additional pleadings and proof requirements if such claims arise.
Timeline and costs
Partition cases vary widely. Simple consensual partitions can resolve in months; contested partitions with valuation disputes or title defects can take a year or more. Costs include filing fees, attorneys’ fees, appraisal fees, and court-appointed commissioners’ fees. Selling costs and liens will reduce net proceeds.
When to get a Delaware attorney
Hire an attorney if:
- owners refuse reasonable negotiation;
- title is unclear or the estate is unsettled;
- there are substantial liens, mortgages, or tax issues;
- you need immediate injunctive relief to prevent waste or loss of value.
An attorney will help choose the correct court, draft pleadings, identify necessary parties, and represent you through valuation, settlement, or trial.
Helpful Hints
- Start by collecting deeds, probate records, tax bills, mortgage statements, surveys, and photos of the property.
- Send a clear written demand and propose mediation before filing suit; courts view reasonable settlement efforts favorably.
- Identify all recorded lienholders and include them as parties — failing to do so can create delays.
- Request temporary orders to prevent physical changes to the property while the case is pending.
- Get an independent appraisal early to set realistic expectations and strengthen settlement leverage.
- Keep detailed records of any payments you make for taxes, repairs, or insurance; they may affect final accounting.
- Search the Delaware Code and local court rules for procedure guidance: https://delcode.delaware.gov/ and https://courts.delaware.gov/.
- Consider the cost-benefit: sometimes a buyout or negotiated sale saves time and expense compared with litigation.
For court-specific forms, filing procedures, and contact information, visit the Delaware Courts website: https://courts.delaware.gov/ and the Court of Chancery: https://courts.delaware.gov/chancery/. If you are uncertain where to start, a brief consult with a Delaware probate or real property attorney can clarify whether a partition action is necessary or whether you can resolve the matter outside court.