Recovering Property Taxes and Mortgage Payments in a Delaware Partition Action

Detailed answer — what to expect in Delaware

This explanation assumes two or more people inherited real estate together (for example, as tenants in common). When co‑owners cannot agree about keeping or selling the property, one co‑owner can file a partition action asking the court to divide the property or order its sale and distribution of proceeds.

Key legal concepts that apply in Delaware partition matters:

• Right to an accounting and contribution. A co‑owner who paid taxes, mortgage installments, or other necessary expenses to protect the property can normally seek an accounting and contribution from the other co‑owners so costs are shared according to ownership shares.
• Credit against proceeds. If the court orders sale of the property, the co‑owner who advanced payments typically can obtain a credit against the co‑owners’ shares of sale proceeds for taxes, insurance, mortgage payments made to avoid foreclosure, and other necessary outlays. The court may deduct the amounts from the proceeds before dividing the remainder among co‑owners.
• Distinction between necessary payments and voluntary improvements. Payments to pay taxes, insurance, mortgage installments, and repairs to prevent waste are more likely to be reimbursed. Substantial renovations that increase value may not be reimbursed dollar for dollar; instead, the party who made improvements may be entitled to a share of the increased value.
• Liability on the mortgage versus equitable contribution. If the mortgage loan is in the decedent’s name and the lender has not personally bound the heirs, the lender’s rights determine payment obligations. But among co‑owners, the person who made mortgage payments can often seek equitable contribution from the others even if they were not personally on the loan.

How a Delaware court typically handles the math

The court will usually require an accounting of all receipts and expenditures related to the property. That accounting may include:

• Property tax bills and proof of payment;
• Mortgage statements showing payment amounts and dates;
• Insurance premiums and proof of coverage;
• Receipts for repairs or expenses necessary to preserve the property;
• Records of rents received (if the property was rented) and other income.

After the accounting, the court will decide equitable adjustments. For example, if two heirs own equal shares and one paid all taxes and mortgage payments for several years, the paying co‑owner may receive credit for those sums plus possible interest before the sale proceeds are split 50/50.

Practical factors that influence recovery

• Documentation. The stronger your proof of payments (bank records, cancelled checks, mortgage statements, tax receipts), the more likely the court will allow full credit.
• Purpose of payments. Payments made to avoid tax liens or foreclosure are more likely to be recoverable than discretionary expenditures that primarily benefited the payer.
• Agreement among co‑owners. Any written or oral agreement about who would pay expenses can alter the outcome—written agreements are strongest.
• Timing and notice. If you paid expenses but failed to notify co‑owners or allowed significant delays, the court may weigh that in assessing recovery or interest.
• Choice of relief. You can ask the court for partition in kind (rare for a single-family home) or sale. If you want reimbursement before distribution, request an accounting and a lien on proceeds in your partition pleadings.

Where to find Delaware statutes and rules that may apply

Delaware does not limit partition remedies to one strict formula—procedures and remedies can be found in Delaware statutes and court rules governing real property and civil procedure. For a general starting point, see the Delaware Code sections on property and courts:

• Delaware Code, Title 25 — Property
• Delaware Code, Title 10 — Courts and Judicial Procedure

Because partition is an equitable remedy, Delaware trial courts apply equitable principles when deciding credits, liens, and reimbursements.

Common outcomes in Delaware partition cases (examples)

Example 1 — Reimbursed for taxes and mortgage payments: Two heirs each own 50%. One heir paid $6,000 in property taxes and $12,000 in mortgage payments in the two years after inheritance. In a partition sale, the court orders an accounting and deducts $18,000 (plus allowable interest or costs) from the sale proceeds before splitting the remainder 50/50.

Example 2 — Improved value vs. reimbursement: An heir spends $20,000 on a major remodel that increases market value by $15,000. The court may not award full reimbursement for $20,000. Instead, the payer may receive credit reflecting the increase in value or an equitable lien on the proceeds tied to the added value.

What you should do if you’re in this situation

1. Collect documentation: mortgage and tax statements, canceled checks, insurance bills, repair invoices, and any written communications with co‑owners.
2. Send a written request for accounting and contribution to the co‑owners. Keep copies of your correspondence.
3. If you and the co‑owner(s) cannot agree, consider filing a partition action requesting sale and an accounting, or ask the court to impose a lien on sale proceeds for amounts you paid.
4. Ask the court for interim relief if the property risks foreclosure—payments to prevent a foreclosure are frequently viewed as necessary and recoverable.
5. Talk to a Delaware attorney about pleadings and proof: an attorney can help you present an accurate accounting and press for the specific relief you need.

Important note: This article explains general principles. The exact procedure and remedies available in your case depend on facts and the court’s equitable discretion.

Disclaimer: This is not legal advice. It is general information only and does not create an attorney‑client relationship. For advice about your specific situation, consult a licensed Delaware attorney.

Helpful Hints

• Keep every receipt and statement—tax bills, mortgage statements, insurance premiums, repair invoices matter.
• Document communications with co‑owners in writing (email or letter) and keep dates.
• Ask for an accounting in writing before filing suit—courts prefer parties attempt resolution first.
• If foreclosure is possible, act quickly. Payments to prevent foreclosure tend to be treated favorably by courts in accounting disputes.
• If you make substantial improvements, track cost and measure value gain (appraisals) so you can show any increased value at sale.
• Consult a Delaware attorney early if co‑owners refuse to cooperate, if large sums are at stake, or if you need temporary court orders to protect the property.