Detailed Answer — How co‑owners start a partition action in New Hampshire
When two or more people own the same piece of real estate and cannot agree on possession, use, sale or division, a co‑owner can ask a court to force a division or sale. That court proceeding is called a partition action. In New Hampshire, partition is an equitable remedy available to co‑owners who hold property as tenants in common or as joint tenants; it is generally not available to partners acting under partnership law or to spouses who hold property by the entireties without first addressing the marital ownership issue.
Key steps to initiate a partition action in New Hampshire:
- Confirm ownership and that partition is appropriate. Verify your form of ownership (deed, title, or recorded instrument). Partition remedies generally apply to tenants in common and joint tenants. If the property is owned by a married couple as tenants by the entireties, a direct partition suit between spouses is typically not available.
- Attempt to resolve the dispute first. Courts expect parties to try negotiation, mediation, or buy‑out discussions before filing. A voluntary agreement avoids costs and delay and gives you more control over the outcome.
- Gather documents and facts. Collect the deed(s), mortgage statements, tax bills, property survey, any leases, and records of contributions to mortgages, taxes, repairs, or improvements. These documents shape the complaint, help calculate each party’s share, and reveal liens or encumbrances that affect proceeds.
- Decide where to file. File the partition complaint in the county where the property is located. In New Hampshire, real‑property equitable actions typically proceed in the Superior Court for the county where the land lies; check the New Hampshire Judicial Branch website for the correct division and local filing rules: https://www.courts.state.nh.us/courts/superior/
- Prepare and file the complaint for partition. The complaint should identify the property, describe each owner’s interest, state the relief sought (partition in kind or sale), and list known lienholders or encumbrances. A plaintiff files the complaint, pays the filing fee, and obtains a case number from the court clerk.
- Serve all interested parties. After filing, you must serve the summons and complaint on all co‑owners and on anyone with a recorded interest (mortgagees, lienholders). Proper service gives the court jurisdiction over those parties. If a party cannot be located, the plaintiff may ask the court for alternative service or to allow notice by publication.
- Responding, discovery, and possible motions. Defending co‑owners may answer, raise defenses or counterclaims, and request discovery (document requests, depositions, interrogatories). Common issues include claims about contributions, agreement to keep the property together, or disputes about the best method of partition.
- Court‑ordered resolution: partition in kind or sale. If the court finds partition appropriate it will usually follow one of two paths:
- Partition in kind: the court divides the land into physically separate parcels allocated to each owner if an equitable division is practicable without undue prejudice; or
- Partition by sale: if division in kind is impractical or would be inequitable, the court orders the property sold (often at auction) and distributes net proceeds to owners according to their interests after paying liens, costs and fees.
- Appointment of commissioners or referees. New Hampshire courts commonly appoint commissioners, referees or special masters to survey, value, and, if necessary, sell the property. These appointees provide reports to the court; parties may object and the court resolves disputes before final distribution.
- Distribution of proceeds and closing the case. After sale, the court orders payment of mortgages, liens, court costs and any agreed or adjudicated reimbursements (for improvements, taxes, etc.). Net proceeds are then distributed according to each owner’s legal share. The court enters a final judgment resolving title and closing the case.
Statutes and court resources: New Hampshire law provides the statutory framework for partition and other property actions. For statutory language and specific statutory provisions consult the New Hampshire Revised Statutes Annotated on the General Court website (search for the chapter on partition) and the New Hampshire Judicial Branch for local filing rules and court contacts:
- New Hampshire Revised Statutes (RSA) — main index: https://www.gencourt.state.nh.us/rsa/html/
- New Hampshire Superior Court information and local rules: https://www.courts.state.nh.us/courts/superior/
Timing and cost considerations:
- A partition action can take several months to more than a year depending on case complexity, appraisal and sale logistics, disputes over liens, and whether appeals are filed.
- Costs include filing fees, service costs, attorney fees, appraisal fees, commissioner or referee fees, and sale costs. Courts may order that costs and some attorney fees be paid from sale proceeds or allocated among parties based on equities.
Common complications:
- Mortgages and liens: mortgage holders may have priority claims; a sale pays those liens before owner distributions.
- Unequal contributions: parties who paid more toward mortgage, taxes or improvements can ask the court for reimbursement or an adjustment to shares.
- Tenancy by entirety: married couples holding property by entireties may not be subject to partition between the spouses without addressing the marital ownership.
- Possession disputes or chronic trespass: these facts can affect urgency and may result in temporary orders.
Next‑step practical checklist:
- Confirm your title and form of ownership (get a copy of the deed).
- Gather mortgage, tax, lease and expense records.
- Obtain a current appraisal or market analysis; consider a survey if boundaries might be split.
- Try negotiation or mediation before filing.
- If filing: consult or hire an attorney experienced in New Hampshire property and partition law; prepare the complaint and arrange service.
Important: This explanation describes the typical process in New Hampshire but does not replace legal advice tailored to your situation. Laws and court procedures change; local court practice and the exact wording of the deed can materially affect rights and remedies.
Disclaimer: This is educational information only and is not legal advice. Consult a licensed New Hampshire attorney about your specific situation.
Helpful Hints for Co‑Owners Facing Partition in New Hampshire
- Early mediation often preserves value and reduces costs — propose a buy‑out or agreed sale before filing.
- Get an independent appraisal and a copy of the current title report before filing — know liens and equity.
- Keep records of all payments (taxes, mortgage, repairs) — courts consider contributions when allocating net proceeds.
- Talk with an attorney about whether your ownership form permits partition and whether other remedies (accounting, quiet title) are relevant.
- Ask the court about sequestration or temporary orders if one co‑owner is harming the property or removing assets.
- Consider tax implications of sale vs. buyout; consult a tax advisor for potential capital gains consequences.
- If you’re threatened with foreclosure, communicate promptly with lenders — mortgage priority affects sale proceeds.
- Check local court filing locations and fee schedules on the New Hampshire Judicial Branch site: https://www.courts.state.nh.us/