Detailed Answer
Partition actions under Delaware law let co-owners divide real property or sell it and split the proceeds. They follow procedures established in Delaware Code Title 25, Chapter 51. This process ensures fair treatment of each owner’s interest.
Filing the Partition Action
Any co-owner with an undivided legal or equitable interest in the property can file a partition action in the Superior Court. The complaint must identify the property, state each party’s interest, and request either a physical division or sale. See 25 Del. C. § 5102.
Service and Joinder of Parties
The filing co-owner must serve the complaint and summons on all co-owners and any party with a recorded lien or claim. The court may join additional necessary parties to ensure that all interests appear and that the judgment binds everyone. See 25 Del. C. § 5101.
Types of Partition
- Partition in Kind: The court divides the real property into distinct portions. Each co-owner receives a parcel proportionate to their ownership share.
- Partition by Sale: If physical division proves impractical or inequitable, the court orders a sale. A commissioner or master oversees the public auction.
Court Determination
The court reviews title records, surveys, and any evidence of liens or encumbrances. It decides whether the property can divide fairly. If not, it opts for a sale.
Sale and Distribution
When the court orders a sale, it appoints a commissioner to conduct a public auction. The sale proceeds first satisfy mortgages, liens, and costs. The net balance distributes among owners in proportion to their ownership interests.
Helpful Hints
- Review your deed and title history before filing.
- Communicate with co-owners to explore amicable solutions first.
- Consider mediation to avoid court delays.
- Keep detailed records of improvements and expenses.
- Budget for court costs, appraisal fees, and commissioner expenses.
- Consult a licensed attorney for personalized guidance.
Disclaimer: This article is for educational purposes and does not constitute legal advice.