Filing a Partition Lawsuit in Delaware: Step-by-Step FAQ

Disclaimer: This article is for educational purposes only and is not legal advice. Consult a licensed Delaware attorney to evaluate your case and represent you. I am not a lawyer.

Detailed Answer: What happens when co-owners can’t agree and you need to file for partition?

When two or more people own real property together and cannot agree on how to divide it, a partition action asks a court to divide the property or order its sale and divide the proceeds. In Delaware, partition is an equitable remedy handled by the courts under state law and civil procedure rules. Generally, the process follows these main steps:

1. Confirm ownership type and what you want

Identify how the property is held (tenancy in common is the default for co-owners who didn’t specify otherwise; joint tenancy requires right of survivorship language). Your desired outcome matters: do you want a physical division (“partition in kind”) or a sale with proceeds divided among owners (“partition by sale”)? Courts prefer partition in kind when it is practicable and fair; otherwise they order sale.

2. Pre-suit attempts to resolve the dispute

Before filing, try negotiation or mediation. Many courts and judges favor resolution without litigation. If the co-owners cannot agree, document your settlement attempts; courts will consider whether the dispute is ripe for litigation.

3. Choose the right court and pleadings

In Delaware, partition matters are generally brought as civil actions in the appropriate trial court (often Superior Court or, in some equitable matters, the Court of Chancery). Check local court rules or ask a Delaware attorney which court is proper for your facts. You will start by preparing a complaint (or petition) for partition that names all known co-owners and any parties with recorded interests (mortgagees, lienholders, tenants, etc.).

Typical contents of the complaint:

• Statement of ownership and how title is held;
• Description of the property (legal description and address);
• Statement that co-owners cannot agree on division or sale;
• Relief requested (partition in kind or partition by sale, appointment of a commissioner/master, accounting for rents and profits, payment of liens from sale proceeds, and attorney’s fees if applicable);
• Request for notice to all interested parties.

4. Service of process and notice

All co-owners and any known lienholders, mortgagees, and other recorded-interest parties must be served with the complaint and summons following Delaware procedure. The court will not divide or sell property without proper notice to those with an interest in the land.

5. Temporary and preliminary orders

Either party may seek temporary relief such as exclusive possession, injunctions against waste, appointment of a receiver to collect rents, or preservation of the property while the case proceeds. The court evaluates such requests under equitable principles.

6. Discovery and valuation

Parties exchange documents and may conduct depositions. The court commonly orders valuation evidence—appraisals, surveys, environmental reports—to determine whether in-kind partition is practical and to set a fair sale price if sale is required.

7. Hearing or trial

If parties do not settle, the court holds a hearing or trial. The judge decides whether to divide the property (if it can be physically divided fairly) or order a sale. The judge may appoint a commissioner, master, or special master to supervise sale or partition-in-kind steps.

8. Appointment of commissioner or master and sale process

If the court orders a sale, it typically appoints a commissioner or master to conduct the sale under court supervision. The appointed official will advertise the property, take bids (often at public auction), and report results to the court. The court confirms the sale and the proceeds are distributed according to ownership shares, after paying mortgages, liens, taxes, court costs, and any allowed fees.

9. Accounting and distribution

Before distributing sale proceeds, the court requires an accounting: payment of encumbrances (mortgages, tax liens), costs of sale, reasonable fees of the commissioner, and possibly attorney’s fees if permitted. Remaining funds are distributed to co-owners according to their ownership interests.

10. Appeals

Parties may appeal rulings as allowed by Delaware appellate procedure. Appeals can extend resolution timelines and increase costs.

How Delaware law and procedure affect this process

Partition actions in Delaware follow equitable principles and civil procedure. For procedural and statutory guidance, consult the Delaware Code and court rules. Helpful places to review are Delaware’s code and court resources:

• Delaware Code (title and chapters relevant to civil actions and court procedures): https://delcode.delaware.gov/title10/
• Delaware Superior Court (civil practice information and forms): https://courts.delaware.gov/superior/
• Delaware Court of Chancery (equitable actions information): https://courts.delaware.gov/chancery/
• Delaware court rules and procedure: https://courts.delaware.gov/rules/

Note: Local practices and which court handles a specific partition matter can vary based on the nature of claims (pure partition vs. equitable accounting or related claims). An attorney will identify the best filing strategy for your facts.

Common defenses and complications to expect

• Contracts or co-ownership agreements that specify buyout, division method, or dispute resolution procedures may preclude court-ordered partition or require compliance with contract steps first.
• Claims that the statute of limitations, laches, or prior settlement bars partition.
• Undisclosed liens, tax issues, environmental contamination, or zoning restrictions that affect sale or division.
• Occupied property with tenants or a co-owner living in the home — courts may handle possession and rent/expenses carefully before sale.

Helpful Hints

• Gather title documents early: deed(s), mortgage(s), surveys, tax records, leases, and any written co-ownership agreements.
• Check recorded liens and mortgages first. A lender’s mortgage survives partition and must be paid from sale proceeds.
• Consider mediation before filing. Courts encourage settlement and mediation can save money and time.
• Obtain at least one professional appraisal early to see whether physical division is practical and to set expectations for sale value.
• Think about costs: court fees, appraisal costs, commission/master fees, potential attorney fees, and costs to make the property marketable (repairs, cleanup).
• If you are an occupying co-owner, be prepared to document rent, maintenance costs, and improvements so the court can account for contributions and reimbursements.
• Record your communications and settlement offers—courts will consider efforts to resolve disputes and equitable conduct by owners.
• Consult a Delaware attorney early if complex matters exist (environmental contamination, multiple mortgages, heirs, or out-of-state owners).

For more information on Delaware procedures, review the Delaware Code and the Superior Court/Chancery Court pages linked above. A Delaware lawyer can advise on local practice, likely timelines, estimated costs, and the best strategy given your exact facts.

Final note: This overview explains typical steps in a partition lawsuit but does not replace legal advice. Contact a licensed Delaware attorney for help tailored to your situation.