What happens if mediation fails and I need to file a partition action to force the sale of our jointly owned land?

Short answer: If mediation fails, you can ask a Delaware court to partition the property. The court can order a physical division (partition in kind) if practical or a forced sale (partition by sale) and distribute the proceeds among owners after paying liens, costs, and any court-ordered adjustments. The process begins by filing a partition complaint in the appropriate Delaware civil court, and it can take months to more than a year depending on complexity.

Detailed answer — Overview of the partition process in Delaware

When co-owners cannot agree about what to do with jointly owned land, Delaware law allows one or more owners to bring a partition action in court to divide or sell the property. Before filing, many parties try mediation or negotiation to avoid court costs and delay. If mediation fails, filing a partition action initiates a civil lawsuit that asks the court to either divide the property among the owners (partition in kind) or sell it and split the proceeds (partition by sale).

Where to file

Partition actions are filed in Delaware civil court with jurisdiction over real property disputes—commonly the Superior Court (or the Court specified by local practice). Start by checking local court rules and filing requirements on the Delaware Courts site: https://courts.delaware.gov/ and consult the Delaware Code for statutory background: https://delcode.delaware.gov/.

Who can file

Co-owners with a legal interest in the property—tenants in common, joint tenants, or owners with separate title interests—can file a partition complaint. If liens, mortgages, or third-party claims exist, those lienholders will typically be named or notified so the court can resolve priorities.

Typical steps in a Delaware partition action

File complaint: The plaintiff (owner seeking partition) files a complaint describing the property, ownership interests, and the requested remedy (division or sale).
Service of process: The defendant owners and known lienholders get served. They have a statutory period to respond.
Answer and defenses: Defendants may object, assert offsets (contributions for improvements, payments of taxes), or claim the property is not susceptible to fair division.
Pretrial and discovery: The court may order discovery (appraisals, title searches, accountings) and hold pretrial conferences to explore settlement.
Commissioners or referees: If the court orders a sale or complicated division, it may appoint a commissioner (or master) to value, partition, or manage the sale of the property and report back to the court.
Order of partition: After considering evidence and the commissioner’s report, the court will enter an order for partition in kind (if feasible) or partition by sale.
Sale procedure: For a sale, the court or appointed officer handles marketing and sale (often by public auction or private sale under court supervision). Proceeds pay liens, taxes, costs, and sometimes contribution claims before net proceeds are split among owners.
Distribution and final decree: The court issues a final decree distributing funds and clearing the title as ordered.

Partition in kind vs. partition by sale

Partition in kind divides the land physically among owners. The court will favor in-kind division when it can be done fairly without materially diminishing value. If the land cannot be fairly divided (for example, a single-family lot or improvements make division impractical), the court will order a partition by sale and divide proceeds instead.

How liens, mortgages, and liens of third parties affect the sale

Mortgage lenders and lienholders have priority claims against sale proceeds. The court typically ensures those encumbrances are paid from sale proceeds before owners receive their shares. If a mortgageholder objects to a sale, the court may require payoff or permit the lender to protect its interest.

Costs, attorney fees, and contributions

Costs of the suit (court fees, appraisal, commissions) usually come out of the sale proceeds before distribution. Delaware courts may allocate costs and make equitable adjustments—awarding credits for contributions to improvements, payment of taxes, or waste caused by a co-owner. Parties should be prepared for litigation costs, and the court may award fees in limited equitable circumstances.

Timeline and potential delays

Simple uncontested partitions can resolve in a matter of months. Complex cases—multiple owners, contested title issues, environmental concerns, or mortgage disputes—can take a year or longer. Appraisals, sale timelines, and court schedules drive the timeline.

Practical options to consider before or after filing

Negotiate a buyout where one owner buys others at a fair market value.
Sell cooperatively on the open market and split net proceeds without filing suit.
Agree to a private sale with escrow and use a mediator or neutral appraiser to set price.
Consider a quiet title action only if title defects—not ownership disagreement—are the core issue.

What to expect in court — examples of common outcomes

Example 1: Two siblings own a vacant lot. One wants to sell, the other wants to keep it. The court finds division impractical and orders a sale, pays outstanding mortgage, deducts fees and taxes, and divides the net proceeds 50/50.

Example 2: Multiple owners of a large tract—court apportions contiguous parcels to certain owners (partition in kind) because the land can be fairly divided with little loss of value.

Where to find Delaware forms and rules

Check Delaware courts for local civil forms and filing rules: https://courts.delaware.gov/forms/ and consult the Delaware Code for statutory background: https://delcode.delaware.gov/.

Helpful hints

Gather title documents, deeds, mortgage statements, tax bills, and any written agreements among owners before filing.
Order a title search early to identify liens or claims that affect proceeds distribution.
Get at least one independent appraisal to support fair market value assertions in court or settlement talks.
Consider a buyout offer—courts often prefer private resolution because it saves time and money.
Ask about mediation or settlement conferences in the court where you file—many judges require or encourage settlement efforts before trial.
Expect the court to require notice to all owners and lienholders; missing parties can slow or reopen the case.
Keep records of payments you’ve made (taxes, insurance, improvements)—the court may credit you for those contributions.
Consult an attorney early if title is complex, or if creditors, bankruptcy, environmental, or family-law issues intersect with the property dispute.

Next steps

If mediation didn’t work, consider these actions: (1) collect your documentation, (2) contact the appropriate Delaware court clerk for filing requirements, and (3) consult an attorney who handles Delaware partition cases to evaluate strategy and likely costs.