SAM GLASSCOCK, III MASTER IN CHANCERY.

This is a partition action which involves two residential lots near Millsboro. The property is owned jointly as tenants-in-common by ten individuals who received their ownership interest as heirs to an estate. When the petition for partition was opposed by some of the co-owners, the matter was referred to me and set for a hearing.

At the hearing, no party offered a defense to the petition for partition. It became clear to me, however, that there was a sentimental value to the property among some of the co-owners and that, potentially at least, some of the co-owners might wish to buy the property at a private sale without physical partition or submission of the property to a trustee. Unfortunately, some of the co-owners are simply unable to trust or work with others of the co-owners. As a result, the litigants had been unable to come to an agreement or even to pick an appraiser who could opine as to the fair market value of the two lots.

In an attempt to facilitate a private sale which would satisfy all the parties, I offered to choose an appraiser. I was authorized by the parties at the partition hearing to do so. I selected Mr. Lynn Moore. Mr. Moore is ready and available to do an appraisal. I also had suggested that a mediation of this matter might be fruitful.

Subsequently, however, the petitioner has renewed his request that the property be submitted to a trustee for a public sale. The petitioner has become convinced, since the time of the initial hearing, that any attempt to reach a solution other than delivery to a trustee for public sale will ultimately fail, with the added expense of the appraisal and additional time by the parties invested to no purpose. The petitioner has also indicated that, in his view, mediation would be unlikely to end in a settlement of the issues here: he therefore opposes mediation.

I solicited responses from the other parties in this matter to the petitioner's current position. One of the co-owners, Errin D. Toomey has written urging mediation and making a number of allegations concerning the administration of the underlying estate. Another, Sherri-Kay Walker (although represented by counsel) has written to me directly indicating that she is in support of an appraisal and private sale. Both correspondents argue that the appraiser should be paid solely by the petitioner and not by the co-owners generally. A third co-tenant, Janice L. Smith, has written opposing mediation and a jointly-financed appraisal, but encouraging a private sale within the family. Finally, Errin Toomey argues that the appraiser I had designated has been tainted by speaking with another of the co-tenants, and therefore should be disqualified and substitute appraiser appointed. The correspondence referred to above indicates clearly the contentious nature of the relationship among the co-tenants, and the difficulties in mediating and settling this matter.

In an action for partition, any co-owner may bring a petition for the property owned jointly to be divided in kind; that is, to be divided into pieces of property with each share equal in value to the recipient's share of the total property. 25 Del. C. § 721. However, where it is demonstrated to the Court that the actual physical

partition of the premises will be detrimental to the interests of the parties entitled, the Court shall make an order for the sale of the premises by a trustee appointed for that purpose, at public vendue, to the highest bidder, upon notice of the time and place of the sale as prescribed in the order.

It is always preferable, in cases of this nature involving family members and a family property, if all parties can agree on a procedure and avoid a forced trustees sale of the property. It was for that reason that I have advocated either a mediation, an appraisal and private sale, or both. However, our law is clear that any co-owner has the right to either a partition in kind or a public sale of the jointly-owned property. 25 Del. C. § 721. While I had hoped that this matter could be settled without a partition, the petitioner has determined that it is in his best interest to exercise his right to partition under the statute. That being the case, and no defense to the partition having been offered, and having found that partition in kind is not practical here, I must, therefore, appoint a trustee to sell these lots at public sale.

While no defense was made to the partition, concerns were raised at the hearing by the co-owners, chiefly that the forced partition was a ploy by some co-tenants to obtain the property at below market value, and that, at any rate, the public sale would not generate fair market value for the property. It is quite true that a public sale may not generate the same sales price which could be achieved through private sale of the same property. This, however, is part of the nature of property held jointly; property held by co-tenants is subject to a forced sale at the will of any co-tenant. Moreover, nothing stops any of the co-tenants or a combination thereof from appearing at the public sale and, should the price appear to them to be below market value, buying the property themselves. In other words, a public sale does not give an advantage to one party over another: the property will be sold by the independent trustee to the highest bidder.

Next, some of the parties have raised contentions that some co-owners have left personal property on the lots in question which has lessened their value. If any co-tenant believes that another co-tenant has committed waste on this property or should otherwise be held liable in equity for some type of contribution to the other co-tenants, the party so alleging should file a formal request for contribution within thirty days of the date on which this report becomes final. Any claims for waste or contribution will be adjudicated before the fund resulting from the sale of the property is distributed.

Once this report becomes final, the petitioner's attorney should supply a form of order providing for the appointment of a trustee and the submission of the property to public sale. Because of the nature of the relationship among the co-tenants, I will not ask the parties to submit names of potential trustees, but will appoint a trustee on my own initiative.