Disclaimer: This content is for informational purposes only and does not constitute legal advice. Consult a licensed attorney in Delaware for guidance.
Detailed Answer
Co-Ownership as Tenants in Common
When real estate passes to multiple heirs under Delaware intestate succession, they typically hold the property as tenants in common. Each heir owns an undivided fractional interest. Under this arrangement, every co-owner has:
- An equal right to possess and use the entire property;
- An ownership share proportional to their inheritance; and
- No authority to exclude other co-owners from occupancy.
This form of co-ownership arises under Delaware’s intestate succession statute. See 12 Del. C. § 2102 (intestate distribution to descendants).
Right to Possession and Occupancy
Each co-owner may live in the property without paying rent to the others unless there is a written agreement. If one heir occupies the property exclusively, the non-occupying co-owner can request an accounting or contribution for costs that benefit all co-owners, including:
- Property taxes;
- Mortgage interest and insurance;
- Routine maintenance and repairs.
Courts apply equitable principles to determine any rent or contribution due to non-occupying heirs.
Partition Actions in Delaware
If heirs cannot agree on whether to live in or sell the property, either co-owner can file a partition action under Delaware Code Title 10, Chapter 49 at 10 Del. C. § 5301 et seq..
In a partition action, the court may:
- Order a partition in kind, physically dividing the land if feasible; or
- Order a partition by sale, selling the property and distributing net proceeds based on each heir’s ownership share.
Partition by sale is the usual remedy when physical division is impractical. A co-owner favoring sale can ask the court to force a sale so proceeds distribute fairly.
Helpful Hints
- Consider a buyout: Offer to purchase the other heir’s share at fair market value to avoid court.
- Use mediation: A neutral mediator can help heirs reach a mutual agreement.
- Get an appraisal: Establish property value before negotiating a sale or buyout.
- Maintain records: Track payments for taxes, mortgage, insurance, and improvements.
- Seek early legal advice: Consulting an attorney can prevent disputes and clarify rights.