Partition Action Complaint - Delaware

VERIFIED PETITION FOR PARTITION OF REAL PROPERTY — DELAWARE (COURT OF CHANCERY)

TABLE OF CONTENTS

1. Caption
2. Nature of the Action
3. Parties
4. Jurisdiction and Venue
5. The Subject Property
6. Cotenancy and Fractional Interests
7. Source and Nature of Title
8. Entitlement to Partition
9. Manner of Partition — In Kind vs. Sale
10. Accounting and Equitable Adjustments
11. Appointment of Commissioners / Trustee
12. Prayer for Relief
13. Verification
14. Signature and Service Blocks
15. Certificate of Service
16. Notice of Lis Pendens
17. Delaware Practice Notes
18. Sources and References

1. CAPTION

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN AND FOR [NEW CASTLE / KENT / SUSSEX] COUNTY

C.A. No. [________________________________]

VERIFIED PETITION FOR PARTITION OF REAL PROPERTY

Petitioner, [PETITIONER NAME], by and through undersigned counsel, respectfully petitions this Court for partition of the real property described herein, and in support states:

2. NATURE OF THE ACTION

2.1. This is a petition for the partition of real property pursuant to 25 Del. C. §§ 721 et seq. Petitioner and one or more Respondents hold the Property described herein as [joint tenants / tenants in common / parceners], and Petitioner prays partition of the Property among the parties according to their respective interests.

2.2. If the Property cannot be divided in kind among the parties without prejudice, Petitioner prays that the Court order a sale of the Property by a trustee and the proceeds divided among the parties according to their respective interests, pursuant to 25 Del. C. § 729.

3. PARTIES

3.1. Petitioner [PETITIONER NAME] is an individual of lawful age residing at [ADDRESS], [CITY, STATE, ZIP], and holds an undivided [____] interest in the Property.

3.2. Respondent [RESPONDENT 1 NAME] is an individual residing at [ADDRESS], [CITY, STATE, ZIP], and holds an undivided [____] interest in the Property.

3.3. Respondent [RESPONDENT 2 NAME] is a [individual / corporation / limited liability company / trust] with its [residence / principal place of business] at [ADDRESS], and holds or claims an interest in the Property.

3.4. Respondent [MORTGAGEE / LIENHOLDER NAME] holds, or appears of record to hold, a [mortgage / judgment lien / mechanic's lien] encumbering the Property or an undivided interest therein, recorded in the Office of the Recorder of Deeds in and for [COUNTY] County, and is joined so that its interest may be protected and, upon any sale, transferred to the proceeds pursuant to 25 Del. C. § 732.

3.5. The Respondents designated as "All Unknown Persons Having or Claiming Any Interest in the Property Described Herein," and any unknown heirs of [DECEDENT NAME], are persons whose identities or whereabouts are unknown to Petitioner after diligent inquiry and who may be served by publication pursuant to 25 Del. C. §§ 722 and 723.

3.6. All persons having any interest in possession, remainder, reversion, or expectancy in the Property have been made parties to this Petition.

4. JURISDICTION AND VENUE

4.1. This Court has subject-matter jurisdiction over this partition action pursuant to 25 Del. C. § 721 and the general equity jurisdiction of the Court of Chancery under 10 Del. C. § 341. The powers of the Court in partition are confirmed by 25 Del. C. § 751.

4.2. Venue is proper in this County because the lands and tenements sought to be partitioned are situate in [COUNTY] County, Delaware. 25 Del. C. § 721.

5. THE SUBJECT PROPERTY

5.1. This Petition concerns the real property known as [STREET ADDRESS], [CITY], [COUNTY] County, Delaware [ZIP], Tax Parcel No. [____________________] (the "Property").

5.2. The Property is legally described as:

[INSERT FULL LEGAL DESCRIPTION — including reference to the recorded deed Book/Page or Instrument No. in the Recorder of Deeds for [COUNTY] County, and any recorded plot/plan]

5.3. ☐ The Property is improved by a [single-family residence / multi-unit dwelling / vacant land / agricultural land / commercial building].

6. COTENANCY AND FRACTIONAL INTERESTS

6.1. Petitioner and the Respondent owners hold title to the Property as [joint tenants / tenants in common / parceners], with the following respective interests:

6.2. The interests of the parties together constitute the entire fee simple in the Property. There is no agreement among the cotenants that waives or restricts the right of partition.

7. SOURCE AND NATURE OF TITLE

7.1. The parties acquired their respective interests in the Property by [deed / devise under the will of [DECEDENT] / intestate succession as parceners under the intestate laws of Delaware / distribution from the Estate of [DECEDENT]], as recorded in the Office of the Recorder of Deeds for [COUNTY] County.

7.2. ☐ The Property descended to the parties as parceners under the intestate laws of Delaware from a common ancestor, [DECEDENT NAME], who died on [__/__/____].

8. ENTITLEMENT TO PARTITION

8.1. Petitioner realleges paragraphs 1 through 7.2 above.

8.2. As a person holding an undivided interest in the Property as a [joint tenant / tenant in common / parcener], Petitioner is entitled to present this Petition and to obtain partition pursuant to 25 Del. C. § 721.

8.3. No voluntary partition or division of the Property has been made among the parties, and the parties cannot agree upon a division or disposition of the Property.

8.4. Petitioner is therefore entitled to a decree of partition pursuant to 25 Del. C. § 724.

9. MANNER OF PARTITION — IN KIND vs. SALE

9.1. Petitioner realleges paragraphs 1 through 8.4 above.

9.2. Partition in kind (preferred). ☐ The Property is capable of division in kind among the parties according to their respective interests without prejudice. Petitioner prays that the Court enter a decree of partition and appoint commissioners pursuant to 25 Del. C. § 724 to make the division and set off to each party that party's several share, with owelty as necessary.

9.3. Partition by sale (alternative). ☐ The Property cannot be partitioned in kind among the parties without prejudice or material injury, in that [the Property is a single-family residence / a single indivisible parcel / would be materially reduced in value if divided / [other reason]]. Petitioner therefore prays that the Court appoint a trustee pursuant to 25 Del. C. § 729 to sell the Property at public sale and to convey title to the purchaser, with the proceeds divided among the parties under 25 Del. C. § 733. Upon confirmation of sale, the rights of all parties in possession, remainder, reversion, or expectancy shall be transferred to the proceeds pursuant to 25 Del. C. § 721(c) and § 732.

10. ACCOUNTING AND EQUITABLE ADJUSTMENTS

10.1. Petitioner realleges paragraphs 1 through 9.3 above.

10.2. In connection with the partition, and pursuant to the Court's equitable powers under 25 Del. C. § 751, Petitioner requests an accounting among the cotenants. Petitioner has paid more than Petitioner's proportionate share of the costs of the Property and is entitled to credit and contribution for:

• ☐ Real-property taxes paid: $[__________];
• ☐ Mortgage principal and interest payments: $[__________];
• ☐ Hazard and liability insurance premiums: $[__________];
• ☐ Necessary repairs and maintenance: $[__________];
• ☐ Capital improvements enhancing the value of the Property: $[__________];
• ☐ Other: [________________________________] — $[__________].

10.3. Petitioner is entitled to a charge against the share of any cotenant who has occupied the Property to the exclusion of Petitioner and received its rents, profits, or rental value (ouster), in the amount of $[__________] or as proven.

10.4. Where partition in kind is decreed and the allotted parcels are unequal in value, Petitioner requests an award of owelty to equalize the division.

10.5. The foregoing adjustments should be reflected in the allotment of shares or in the division of sale proceeds under 25 Del. C. § 733.

11. APPOINTMENT OF COMMISSIONERS / TRUSTEE

11.1. Petitioner realleges paragraphs 1 through 10.5 above.

11.2. Petitioner requests that the Court appoint commissioners pursuant to 25 Del. C. § 724 to make partition in kind and report to the Court; or, if the Property cannot be divided without prejudice, that the Court appoint a trustee pursuant to 25 Del. C. § 729 to sell the Property at public sale and convey title.

11.3. The commissioners or trustee should be authorized to employ a licensed surveyor, appraiser, or auctioneer as necessary, with reasonable compensation and the costs of partition taxed pursuant to 25 Del. C. § 735.

12. PRAYER FOR RELIEF

WHEREFORE, Petitioner respectfully prays that this Court:

A. ☐ Order a summons in partition to issue to all interested Respondents pursuant to 25 Del. C. § 722, and notice by publication to unknown or nonresident parties pursuant to § 723;

B. ☐ Ascertain and declare the respective rights, shares, and interests of the parties in the Property;

C. ☐ Enter a decree of partition of the Property in kind and appoint commissioners under 25 Del. C. § 724, with owelty as necessary, and enter a final decree under § 726;

D. ☐ In the alternative, appoint a trustee to sell the Property at public sale and convey title under 25 Del. C. § 729, and divide the net proceeds under § 733;

E. ☐ Take an accounting among the cotenants and award Petitioner credit, contribution, and offset for taxes, mortgage, insurance, repairs, improvements, and the rental value of any property held in ouster;

F. ☐ Order that all liens and encumbrances be transferred to and attach to the proceeds of any sale in their respective priorities pursuant to 25 Del. C. § 732;

G. ☐ Tax the costs and expenses of this proceeding, including commissioners' or trustee's fees, survey and appraisal costs, and reasonable counsel fees, among the parties pursuant to 25 Del. C. § 735; and

H. ☐ Grant such other and further relief as equity may require.

13. VERIFICATION

STATE OF [________________]

COUNTY OF [________________]

I, [PETITIONER NAME], being duly sworn according to law, depose and say that I am the Petitioner in the foregoing Verified Petition for Partition; that I have read the same and know the contents thereof; and that the facts therein stated are true and correct to the best of my knowledge, information, and belief.

[________________________________]
[PETITIONER NAME]

SWORN TO AND SUBSCRIBED before me this [____] day of [________________], 20[____].

[________________________________]
Notary Public
My Commission Expires: [__/__/____]

14. SIGNATURE AND SERVICE BLOCKS

Dated: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME] (Del. Bar ID No. [__________])

[STREET ADDRESS], [CITY, STATE ZIP]

Telephone: [________________] Email: [________________]

Attorney for Petitioner

15. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a copy of the foregoing VERIFIED PETITION FOR PARTITION was served upon all parties of record by ☐ File & ServeXpress / the Court's electronic filing system; ☐ summons issued and served by the Sheriff pursuant to 25 Del. C. § 722; ☐ U.S. Mail, postage prepaid; ☐ publication as ordered by the Court, addressed as follows:

[NAME / ADDRESS OF EACH PARTY OR COUNSEL SERVED]

[________________________________]
[ATTORNEY NAME]

16. NOTICE OF LIS PENDENS

NOTICE OF PENDENCY OF ACTION (LIS PENDENS)

NOTICE IS HEREBY GIVEN that a Verified Petition for Partition of Real Property has been filed and is pending in the Court of Chancery of the State of Delaware in and for [COUNTY] County, C.A. No. [________________], entitled [PETITIONER NAME] v. [RESPONDENT NAME], et al., which action affects the title to and right of partition of the following real property situate in [COUNTY] County, Delaware:

[INSERT FULL LEGAL DESCRIPTION]

Commonly known as [STREET ADDRESS], [CITY], Delaware [ZIP]; Tax Parcel No. [____________________].

Dated: [__/__/____]

[________________________________]
[ATTORNEY NAME] (Del. Bar ID No. [__________])
Attorney for Petitioner

RECORD WITH: The Recorder of Deeds in and for [COUNTY] County, Delaware.

17. DELAWARE PRACTICE NOTES

• Forum and instrument. Partition is filed in the Court of Chancery as a Verified Petition under 25 Del. C. §§ 721 et seq. The Court's general equity jurisdiction is conferred by 10 Del. C. § 341, and its specific partition powers by 25 Del. C. § 751.
• Statutory location. The Delaware partition statute is in Title 25 (Property), Chapter 7, Subchapter II (§§ 721-751) — not Title 10. Section 721 authorizes joint tenants, tenants in common, and parceners (and certain class/remainder interest holders) to petition.
• Service. A summons in partition issues under § 722 returnable not less than 20 days after the order; nonresident, unknown, or uncertain parties (including unknown heirs) may be served by publication under §§ 722-723.
• In kind vs. sale. Partition in kind is preferred and carried out by commissioners under § 724. Where division cannot be made without prejudice, the Court appoints a trustee to make a public sale under § 729 and convey title (§ 731). Upon a confirmed sale, all interests, including future interests, transfer to the proceeds (§ 721(c), § 732).
• Liens. Liens are transferred to the proceeds of sale and paid in priority (§ 732); proceeds are invested or divided under § 733.
• Accounting / offsets. The Court's equity powers (§ 751) support an accounting for contributions (taxes, mortgage, insurance, repairs, improvements) and charges for rents/ouster. Advancements are addressed in § 738; dower, curtesy, and life-estate interests in §§ 736-744.
• UPHPA status. Delaware has not adopted the Uniform Partition of Heirs' Property Act. Inherited tenancies are partitioned under the general statute.
• Waiver of partition. The statutory right of partition may be waived by a co-ownership agreement that supplies an exit mechanism inconsistent with partition (Libeau v. Fox, 880 A.2d 1012 (Del. 2005)). Confirm no such agreement exists.
• Costs. Costs are taxed under § 735; the right or justice of the cause governs apportionment (§ 751).

18. SOURCES AND REFERENCES

• 25 Del. C. §§ 721-751 (Joint Estates and Partition; Partition Proceedings) — https://delcode.delaware.gov/title25/c007/
• 10 Del. C. § 341 (Court of Chancery — general equity jurisdiction)
• Libeau v. Fox, 880 A.2d 1012 (Del. 2005) (waiver of right to partition)
• Court of Chancery Rules 3, 8, 10
• Uniform Law Commission — Uniform Partition of Heirs Property Act (status reference; not adopted in Delaware)

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