Detailed Answer
Short answer: In New Hampshire you usually may remain in possession of the home while a partition case is pending if you hold a life estate (are the life tenant), but the final outcome depends on the facts, the form of partition the court orders, and whether the court finds that continued possession would cause waste or unfairness.
What a life estate means: A life tenant has the right to possess and use property for the length of the life identified in the deed or will (usually the life tenant’s own life). The future interest (the remainder) belongs to one or more remaindermen, who get full ownership once the life estate ends.
How partition works in general: A partition action is a lawsuit that asks a court to divide property among co-owners or to sell it and divide the proceeds. In New Hampshire this is a civil action handled under state law and the rules of civil procedure. Parties may ask for partition-in-kind (physically divide land) or partition by sale (sell the property and split proceeds). A court will choose the method that is fair and practicable under the circumstances.
How a life tenancy affects partition: Because a life tenant has a legal right to possess during the life estate, courts generally recognize that right during a partition action. That usually means:
- You are normally allowed to stay in possession and use the property while litigation proceeds, unless the court orders otherwise.
- If the court orders partition by sale, the judge may allow you to remain in the house until the sale closes, or may require that you leave earlier if continued possession would harm the property or other owners’ rights.
- The court may set terms when allowing you to remain: payment of rent to the eventual buyers or other co-owners, requirements to maintain the property, or bonding to secure payment for damage or waste.
Factors the court will weigh (examples):
- Whether physical division (partition-in-kind) is practicable. Houses on one lot usually cannot be split without inequity.
- Whether the life tenant’s continued possession causes waste (destruction, removal of fixtures, or neglect) that would reduce the remaindermen’s interest.
- Whether the co-owners want immediate sale and distribution of proceeds and whether postponing sale would cause prejudice.
- Ability of the life tenant to pay taxes, insurance, maintenance and other carrying costs while remaining in possession.
Typical court orders and remedies you might see:
- Partition-in-kind (rare for single-house lots): the court divides the land physically if feasible.
- Partition by sale: the property is sold; the court decides who pays costs and whether the life tenant may stay until sale or must vacate earlier.
- Occupancy terms: the life tenant may be allowed to remain in return for paying a reasonable occupancy charge (often called “use and occupation” or constructive rent) toward taxes, insurance and mortgage payments.
- Security or bond: the court may require the life tenant to post a bond to protect other owners against waste or damage while remaining in possession.
- Injunctions: a court can prevent a life tenant from committing waste or may order repairs or maintenance.
Example hypothetical (illustrative only): Suppose Mary holds a life estate in a house and Jake and Anna hold the remainder interests. Jake files a partition asking for sale because dividing the lot isn’t practical. During the court process Mary may be allowed to stay. The judge could order Mary to pay a monthly occupancy amount toward property taxes and insurance and require an inspection or bond to guard against waste. If Mary refuses to pay or actively damages the property, the court could order her removed before sale.
Where to look in New Hampshire law: New Hampshire statutes and court practice govern civil partition actions and property rights. You can find the Revised Statutes Annotated for New Hampshire on the General Court website: https://www.gencourt.state.nh.us/rsa/html/. Partition actions are handled as civil suits in superior or county court and are subject to the New Hampshire Rules of Civil Procedure and relevant case law available through the New Hampshire Judicial Branch website.
Practical consequences for a life tenant:
- You should continue to pay property taxes, insurance and ordinary upkeep to show good-faith stewardship and reduce grounds for a court to find waste.
- Keep records of all payments, repairs, and communications with co-owners—these can affect what the court orders about occupancy charges and credits.
- Be prepared that a court may require you to pay an occupancy charge or to post security while remaining in the home.
- If you prefer to stay permanently, consider negotiating a buyout with the remaindermen: they could buy out the remainder (or you could buy it) based on valuations and life expectancy calculations.
How to protect your position
- Respond to the partition lawsuit promptly. Missing deadlines can lead to default orders.
- Ask the court to recognize your life estate and to set fair conditions for your remaining in possession (e.g., reasonable occupancy payment, maintenance obligations).
- If you are being threatened with forcible removal, contact the court or an attorney immediately—eviction or ejectment procedures may be used if a court orders removal.
Helpful Hints
- Document your title: have the deed or will that created the life estate available. The document that created the life estate is the central evidence of your rights.
- Get an appraisal: a current market appraisal helps if the court or the parties must value the property for sale or buyout.
- Track expenses: keep receipts for taxes, insurance, utilities, and repairs to support arguments about offsets or credits.
- Consider negotiation: many partition cases settle. Propose a buyout, a delayed sale to allow you time to relocate, or specific occupancy terms to avoid litigation costs.
- Know timelines: partition litigation can take months. Be prepared for interim orders about occupancy, maintenance, and handling of income (rent) if applicable.
- Seek an attorney early: an attorney experienced in New Hampshire property and probate matters can explain options, draft proposals, and represent you at hearings.
- If you cannot afford private counsel, check whether local legal aid or law school clinics in New Hampshire offer help for civil-legal matters.
Disclaimer: This article explains general information about New Hampshire property law and partition actions. It is not legal advice and does not create an attorney-client relationship. For advice tailored to your situation, consult a licensed New Hampshire attorney.