Summary: This FAQ explains who should be listed as petitioners on a partition lawsuit in Delaware. It covers who can and should sign as petitioners, how to name parties correctly, special situations (trusts, minors, corporations, lienholders), and practical steps to prepare before filing. This is informational only and not legal advice.
Detailed Answer
What a partition action does and who typically starts it
A partition action asks a court to divide or sell real property that two or more people (or entities) own together. The person or people who start the lawsuit are called the petitioners (plaintiffs in some courts). Petitioners seek a judicial order to either physically divide the property (partition in kind) or order a sale and divide the proceeds (partition by sale).
Who should be listed as petitioners on a Delaware partition lawsuit?
- Any co-owner who wants the court to order partition may be a petitioner. If multiple co-owners agree to pursue partition together, they can all join as petitioners.
- If only one co-owner wants partition, that co-owner can file alone as the sole petitioner and name the other co-owners and any known claimants (mortgagees, lienholders, lessees with recorded interests) as defendants.
- Petitioners should be the legal owners or persons authorized to act for the owner: the individual named on the recorded deed, an executor or personal representative for an estate, a trustee where title is held in trust (the trustee, not the beneficiaries), or an authorized officer or agent for a business entity.
How to name petitioners (practical rules)
- Use the exact legal name that appears in the public record (the deed). For example: full legal name for individuals; full corporate or LLC name as shown in the deed; the trustee’s name followed by “as trustee of [Name of Trust].”
- If title is held by an estate, the petition should list the personal representative or executor as petitioner and identify the estate they represent.
- If a business owns title, include the business’s exact form (e.g., “ABC, LLC”) and add the name and capacity of the person signing (e.g., “John Doe, Manager of ABC, LLC”). Attach proof of authority if a company officer or agent signs.
- If a petitioner is a minor, incapacitated person, or in bankruptcy, indicate that in the petition and arrange for a guardian ad litem or guardian/committee to be appointed before or shortly after filing.
Who are the necessary parties to name (even if not petitioners)?
Delaware courts require that anyone with an interest that could be affected by the partition be brought into the case. Typical parties to include as defendants (not petitioners) are:
- Other co-owners of record;
- Mortgagees, lienholders, and judgment creditors who hold recorded encumbrances;
- Tenants in possession with recorded leases;
- Trust beneficiaries, heirs, or executors when title traces to an estate or trust and their legal representatives;
- Any person or entity with a recorded or known cloud on title.
Delaware civil rules on joinder require bringing in all persons whose interests are necessary for the court to afford complete relief and avoid multiple suits. See Delaware Courts rules for joinder and necessary parties: Delaware Courts — Rules.
Common special situations
- Trusts: The trustee is the proper petitioner if the trust owns title. Do not list beneficiaries as petitioners unless they hold legal title.
- Estates: The personal representative (executor/administrator) acts for the estate and should be the petitioner for estate-owned property.
- Corporations/LLCs: An authorized officer or manager signs for the entity, and the petition should show proof of their authority (meeting minutes, corporate resolution, or certificate of incumbency).
- Minors and incapacitated persons: Appoint a guardian or guardian ad litem to act for their interest before final orders are entered.
- Unknown or missing owners: The petition may seek service by publication or other court-authorized service for unknown owners; the court will set procedures to protect their interests.
What if someone who should be a petitioner is accidentally left out?
If a co-owner who wanted to join as petitioner is left off, they can usually intervene or the petitioners can amend the complaint to add them. If an owner who should have been named at all (as petitioner or defendant) is omitted entirely, the court may later allow joinder or, in some cases, an aggrieved party may challenge the court’s orders. To reduce this risk, obtain a title search and identify all record owners and recorded claimants before filing.
Practical checklist before filing
- Run a current title search or get a title report to identify all owners and recorded encumbrances.
- Confirm exact legal names and capacities from the deed.
- Collect proof of authority for trustees, corporate officers, or personal representatives.
- Determine whether any owners are minors, incapacitated, or in bankruptcy and arrange for guardians or counsel if needed.
- Decide who will be petitioners (those who want to pursue partition) and who will be named as defendants (other owners and claimants).
When to consult an attorney
Partition lawsuits can affect ownership rights, liens, tax consequences, and tenancy arrangements. Talk to a Delaware real estate attorney if you:
- Have complex ownership (trusts, estates, business entities, or many owners);
- Face competing claims to title or unclear recorded interests;
- Need guidance on whether partition in kind or sale better protects your financial interest; or
- Must locate missing owners or handle minors/incapacitated owners.
Delaware court procedural rules on joinder and named parties can affect who must be in the lawsuit; review the Delaware Courts rules here: https://courts.delaware.gov/rules/. For general Delaware statutory information, see the official code at https://delcode.delaware.gov/.
Helpful Hints
- Always match the name on the petition to the recorded deed exactly—small name errors can cause service and jurisdiction problems.
- If you represent a company, attach proof of the signer’s authority to the petition to avoid dismissal or delay.
- If only one owner wants partition, filing alone as petitioner is common; the other owners will be named as defendants and given a chance to respond.
- Get a title report first. The report will reveal lienholders and recorded interests you must name as defendants to protect the final judgment.
- If an owner is unreachable, the court can allow alternative service (for example, publication), but you will need to show reasonable efforts to find them.
- Keep clear records of ownership percentages and any agreements among owners—these facts matter when the court decides how to divide proceeds or property.
- Bring questions about tax, mortgage payoffs, or sale logistics to an attorney early—these issues affect the outcome and the petition language.
Disclaimer: This information explains general principles about partition actions in Delaware and is not legal advice. Laws change and every situation is different. Consult a licensed Delaware attorney to apply the law to your facts.