Key Takeaways
- Delaware recognizes tenancy by the entirety for married couples, providing survivorship and creditor protection
- Joint tenancy with right of survivorship must be expressly stated in the deed
- Delaware is a lien theory state where the borrower retains title and the lender has a lien
- Foreclosures in Delaware are judicial and must go through the court system
- Delaware has specific property tax and assessment rules
Delaware Property Ownership and Rights
Delaware has specific rules for property ownership, including special protections for married couples.
Types of Ownership
Sole Ownership
One person owns the property:
- Full control
- Passes through probate at death
Tenancy in Common
Multiple owners with:
- Separate, undivided interests
- Can be unequal shares
- No right of survivorship
- Each share passes through owner's estate
Joint Tenancy with Right of Survivorship
Multiple owners with:
- Equal shares
- Right of survivorship
- Must be expressly stated in the deed
- Avoids probate
Delaware Rule: To create joint tenancy with right of survivorship, the deed must expressly state this intent. Otherwise, concurrent ownership is presumed to be tenancy in common.
Tenancy by the Entirety
Special form of ownership for married couples only:
| Feature | Description |
|---|---|
| Ownership | Spouses own as one unit |
| Survivorship | Automatic - surviving spouse gets all |
| Creditor Protection | Creditor of one spouse cannot reach property |
| Termination | Only by death, divorce, or mutual agreement |
Tenancy by the entirety is automatically created when:
- Both spouses take title
- Property is residential
Lien Theory State
Delaware is a lien theory state:
| Feature | Description |
|---|---|
| Borrower | Retains title to property |
| Lender | Holds a lien against property |
| Default | Lender must foreclose to acquire title |
Mortgage Documents
| Document | Purpose |
|---|---|
| Promissory Note | Promise to repay the loan |
| Mortgage | Creates lien on property |
Foreclosure in Delaware
Judicial Foreclosure Required
Delaware requires judicial foreclosure:
- Must go through court system
- Longer process than non-judicial states
- Borrower has due process rights
- Court supervises sale
Foreclosure Timeline
| Stage | Typical Process |
|---|---|
| Default notice | After missed payments |
| Filing complaint | Lender files with court |
| Service | Borrower served with complaint |
| Response period | Borrower can respond |
| Judgment | If no defense or after hearing |
| Sheriff's sale | Public auction |
Deficiency Judgments
Delaware allows deficiency judgments:
- If sale proceeds don't cover debt
- Lender may pursue borrower for balance
- Fair market value considerations apply
Property Taxes
Delaware Property Tax Features
| Feature | Description |
|---|---|
| Assessment | County assessments |
| Payment | Varies by county |
| Lien priority | Property taxes are priority liens |
| Exemptions | May include homestead, senior exemptions |
Transfer Taxes
Delaware has transfer taxes on real estate sales:
| Tax | Rate |
|---|---|
| State Transfer Tax | Percentage of sale price |
| Recording Fees | Additional fees |
Transfer tax is typically split between buyer and seller per agreement.
What type of ownership provides creditor protection for married couples in Delaware?
Delaware is what type of mortgage state?