Detailed Answer — How to start a partition action in Delaware
When co-owners of real estate cannot agree on what to do with a property, one co-owner can ask a court to force a division or sale through a partition action. This article explains the practical steps, likely court process, and important considerations under Delaware practice so you can understand what to expect and when to call an attorney. This is general information only and not legal advice.
Quick overview: A partition action is a civil lawsuit asking the court to divide property among the owners (partition in kind) or, if division is impractical, order a sale and divide the proceeds (partition by sale). In Delaware such matters are handled in the state courts; procedural rules and local court practices affect how the case proceeds.
1. Confirm who has an ownership interest
Before filing, identify everyone who has a legal or equitable interest in the property. That usually includes:
- Co-owners named on the deed (tenants in common or joint tenants)
- Spouses where tenancy by entireties or homestead issues may apply
- Mortgage holders, lien holders, judgment creditors who have recorded interests
- Heirs or devisees who inherited an interest
All persons with a recorded interest must be named as parties and served with the complaint.
2. Collect documents and facts
Gather the deed(s), recent title report or abstract, mortgage statements, property tax bills, surveys, lease agreements (if rented), and records of improvements or contributions by any co-owner. The court will need a legal description of the property and proof of each party’s interest.
3. Try informal resolution first
Courts expect parties to try to resolve disputes before asking for judicial relief. Consider:
- Mediation or neutral negotiation
- One owner buying out the others
- Agreement on a private sale and division of proceeds
If negotiations fail, file a partition complaint.
4. Filing the partition complaint
File a civil complaint in the appropriate Delaware court (typically the Superior Court for ordinary partition actions involving real estate). The complaint should:
- Name all owners and all recorded lienholders or anyone with a known claim
- Describe the property with the legal description
- Allege ownership shares and the inability to agree
- Pray for partition in kind or, if that is not practicable, for sale and division of proceeds
- Request appointment of a commissioner or master to carry out partition, if necessary
The plaintiff must pay filing fees and follow the court’s local rules for civil actions.
5. Service of process and responses
All named parties must be properly served. After service, defendants typically have a short period to answer. Some parties may file counterclaims (for accounting, liens for contributions, or to claim a superior right). Expect discovery if parties contest facts.
6. Court procedures and relief the court may order
Common outcomes in a Delaware partition case:
- Partition in kind: The court divides the property into distinct parcels and awards each co-owner a portion. This is preferred when the property can be divided fairly without materially reducing value.
- Partition by sale: If dividing the land is impractical or would significantly reduce value, the court orders a sale. The court may direct a public auction, a referee/commissioner-supervised sale, or a private sale under court supervision.
- Appointment of a commissioner/master: The court often appoints a neutral to manage surveying, subdividing, conducting the sale, or distributing proceeds.
- Accounting and adjustment: The court may require an accounting to credit owners for payments (mortgage, taxes, improvements) and charge for waste or other deductions before dividing net proceeds.
7. Liens, mortgages, and junior interests
Mortgages and recorded liens generally remain attached to the property. If the court orders a sale, lienholders are paid from the sale proceeds in the order of priority. If a co-owner owes money secured by the property, that debt usually reduces the share available to distribute.
8. Timing and costs
How long a partition takes depends on complexity, number of parties, and whether the case settles. A straightforward partition may resolve in several months; contested cases can take a year or longer. Costs include court fees, service, survey and appraisal, commissioner or auction fees, and attorneys’ fees. Courts may award costs in limited circumstances, but attorneys’ fees are not always recoverable unless statutory or equitable grounds exist.
9. Practical alternatives to full litigation
Because partition suits can be costly and divisive, consider:
- Buyout offers and negotiated settlements
- Mediation or collaborative dispute resolution
- One owner taking title subject to refinancing to pay others
10. Next steps and when to consult an attorney
If you are a co-owner who cannot reach agreement, reach out to a Delaware real estate or civil litigation attorney. An attorney can:
- Confirm the correct parties and ownership interests
- Prepare and file the complaint
- Advise on settlement offers and tax consequences
- Represent you at hearings and in negotiations
Delaware court rules and local procedures can affect deadlines, service methods, and forms. For procedural guidance and local forms, see the Delaware Superior Court website: https://courts.delaware.gov/superior/ and consult the Delaware Code at https://delcode.delaware.gov/ for statutory provisions that may relate to property and civil procedure.
Disclaimer: This information is educational only and not legal advice. It does not create an attorney-client relationship. For advice specific to your situation, consult a licensed Delaware attorney.
Helpful Hints
- Start by ordering a current title report or running a public records search to identify all owners and lienholders.
- Get a recent property survey and an appraisal early — they help the court decide whether physical division is possible.
- Document improvements, payments for mortgage/taxes, and any agreements among co-owners—these facts affect allocation at distribution.
- Talk to co-owners about mediation before filing; courts favor parties who attempt settlement.
- Understand tax implications: a sale can trigger capital gains taxes and closing costs; get tax advice if needed.
- Be realistic about costs vs. value: expensive litigation can erase the benefits of forcing a sale for a modest property.
- Record-keeping matters: preserve deeds, loan documents, receipts, invoices for improvements, and any written communications about ownership or agreements.
- If a party is missing or cannot be located, the court has procedures for substitute service or publishing notice; an attorney can help with those steps.
- Consider whether a buyout or partition in kind better preserves property value—an attorney and appraiser can advise.
- Expect the court to require an accounting and to pay lienholders and costs before distributing net proceeds.