How co-owners start a partition action to divide or sell shared real property in Delaware

Short answer: Co-owners who cannot agree on what to do with jointly owned real estate can ask a Delaware court to force a partition — either a division of the land (partition in kind) or a sale with proceeds divided among owners (partition by sale). The process begins by filing a partition complaint in the appropriate Delaware court, serving the other co-owners and interested parties, and asking the court to order division or sale. Courts generally prefer dividing the property physically when practical but will order a sale when division would be impractical or would significantly reduce value.

Detailed Answer — Step-by-step guide under Delaware law

Note: This explains general Delaware procedure and common legal principles. It is not legal advice.

1. Confirm ownership type and who has standing

Partition actions are available to co-owners of real property. In Delaware that typically means tenants in common or joint tenants who hold an ownership interest in the land. Before filing, gather the deed, title report, tax records, and any written agreements (such as buy-sell agreements or recorded restrictions) to confirm each party’s interest. If an ownership agreement exists, it may limit or change the right to force a partition.

2. Try to resolve the dispute first

Court costs and lawyer fees can exceed the value of smaller properties. Delaware courts encourage settlement. Try written demand, negotiation, appraisal and buyout offers, or mediation. If negotiations fail, a party may file a partition complaint.

3. Where to file the partition action

In Delaware, partition and other equitable disputes are typically resolved in the court with jurisdiction over equity matters. Cases involving title disputes, partition, or requests for a judicial sale often proceed in the Court of Chancery or another trial court depending on the precise remedies sought. Check Delaware court rules or consult counsel to choose the correct forum and to follow local filing procedures. For general statutory and court information see the Delaware Code and the Delaware Courts site: Del. Code — Title 10 (Courts and Judicial) and Delaware Courts. For a statutory framework related to partition actions, see relevant partition provisions in the Delaware Code: Del. Code Ann., Title 10, Chapter 39 — Partition.

4. Contents of the complaint

A typical partition complaint will include:

Identification of the parties (all co-owners and known lienholders or encumbrancers).
A legal description and street address of the property.
A statement of each party’s alleged interest (percent or fraction if known).
Facts showing the owners cannot agree and the relief requested (partition in kind or partition by sale).
Request for appointment of a commissioner, master, or other court officer to survey, divide, or sell the property and to account for proceeds, costs, and liens.
Prayer for other relief (e.g., accounting of rents/expenses, payment of liens from sale proceeds).

5. Service of process and joinder of interested parties

All co-owners and any parties with recorded interests (mortgagees, judgment lienholders, leaseholders with recorded interests) must be served or otherwise joined so the court can bind them by the judgment. Failure to join necessary parties can delay the case or result in incomplete relief.

6. Preliminary motions and discovery

After filing, parties may exchange documents, depose witnesses, and litigate preliminary issues — for example, whether the property can be equitably divided, whether a recorded agreement prohibits partition, or whether one co-owner should be excluded. The court may appoint a temporary receiver if property preservation is necessary.

7. Appraisal, partition in kind vs partition by sale

The court will consider whether physical division (partition in kind) is practical. If dividing will substantially reduce value, impair marketability, or is physically infeasible, the court will order partition by sale. The court often relies on appraisals and expert testimony. If the court orders a sale, it normally appoints a commissioner, master, or auctioneer to market and sell the property and to report the sale to the court.

8. Accounting for liens, costs, and distribution

Proceeds from a sale are applied to pay costs of the action, taxes, and superior encumbrances (mortgages). Remaining funds are divided among co-owners according to their recorded interests, subject to any court-ordered credits or adjustments for contributions, improvements, or waste. The court’s order will set the precise distribution.

9. Timing and likely outcomes

Timing varies widely. Simple cases may resolve in a few months; contested cases with complex title issues or litigation over division can take longer. Possible outcomes include:

Partition in kind (physical division of the parcel).
Partition by sale and division of net proceeds.
Buyout of one or more co-owners before sale (a negotiated settlement).
Dismissal if the plaintiff lacks standing or if an enforceable agreement bars partition.

10. Costs, attorney fees, and fee shifting

Each party normally pays its own attorney fees unless a statute, contract, or court equity decision allows fee shifting. The court may order common costs of sale and court-appointed officer fees paid from sale proceeds.

Hypothetical example

Mary, Joe, and Nina inherit a beach house as tenants in common. Mary wants to sell; Joe and Nina want to keep it. Mary first offers to buy out the others and provides a written demand. Negotiations fail. Mary files a partition complaint in the appropriate Delaware court naming Joe, Nina, and the mortgage lender. The court orders appraisal evidence. The appraisers state that dividing the single cottage lot would create two nonviable lots, so the judge orders partition by sale, appoints a commissioner to sell at public auction, directs the mortgage holder to be paid from sale proceeds, and directs the clerk to distribute net proceeds among the three heirs according to their ownership shares.

Relevant Delaware statutes and court resources

Delaware Code — Title 10 (Courts and Judicial): https://delcode.delaware.gov/title10/.
Delaware Code — Partition provisions (see Chapter on Partition): https://delcode.delaware.gov/title10/c039/index.html.
Delaware Courts (general court information and rules): https://courts.delaware.gov/.

Helpful Hints

Get a title search and current deed before filing. Confirm all recorded interests and exact ownership shares.
Send a clear written demand to other co-owners before filing. Courts and potential buyers often view a prior good-faith attempt to settle favorably.
Obtain a preliminary market appraisal to see whether division is realistic or whether a sale is likely.
Consider mediation. A buyout or settlement can be much cheaper and faster than litigation.
Keep records of payments (mortgage, taxes, improvements). The court can adjust distributions based on contributions or waste.
Be prepared for liens and mortgages to be paid from sale proceeds; resolving encumbrances before sale can simplify the process and increase sale value.
Ask the court to appoint a commissioner or master with real estate experience when a sale is likely.
Speak with an attorney experienced in Delaware real property or partition matters early — they can identify the correct court, required parties, and likely statutory issues.

Disclaimer: This article explains general Delaware law principles and common procedures related to partition actions. It is for educational purposes only and is not legal advice. For advice about your specific situation, consult a licensed Delaware attorney.