Understanding Partition Actions in New Hampshire: Forcing the Sale of an Inherited Interest
Short answer: To force the sale of an inherited interest in New Hampshire, you typically file a civil action for partition in the county Superior Court where the land is located. The court can order a partition in kind (divide the land) or, if division is impractical, a partition by sale and distribution of proceeds among co-owners. This article explains the process, steps you will take, what documents you need, likely costs and timelines, and alternatives to a court-ordered sale.
Disclaimer
This is general information only and does not constitute legal advice. I am not a lawyer. For advice about your specific situation, consult a New Hampshire attorney experienced in real property and probate/estate matters.
Detailed Answer — How to file a partition action in New Hampshire
Below is a step-by-step overview of what filing a partition action in New Hampshire usually involves. Missing details may vary by county and by the facts of your case, but these are the core steps and legal principles.
1. Confirm the type of ownership and who must be joined
Most inherited interests take the form of tenancy in common (each owner has a separate, divisible share). A partition action requires naming all persons with an ownership or recorded interest in the property as defendants. That includes co-owners, lienholders (mortgagees), judgment creditors whose liens attach to the real estate, and sometimes heirs or personal representatives if title passed through probate.
2. Where to file
File the complaint for partition in the Superior Court of the county where the property is located. The Superior Court handles civil actions regarding real property. For general court information see the New Hampshire Judicial Branch: https://www.courts.state.nh.us/. For statutory guidance and to read New Hampshire statutes, see the NH Revised Statutes (RSA) site: https://www.gencourt.state.nh.us/rsa/html/.
3. Drafting the complaint
The complaint should state facts that show your ownership interest, describe the property (legal description or tax map/lot), identify all parties with interests, and request relief — either partition in kind or partition by sale. If you specifically want a sale, say so and explain why an in-kind division would be impracticable (e.g., the parcel is too small or physically cannot be divided without harming value).
4. Filing fees and service
Pay the Superior Court filing fee and arrange for service of the complaint and summons on all named parties. If someone cannot be located, New Hampshire law and court rules allow substituted service or service by publication in carefully limited circumstances — you will need to follow the rules for notice precisely.
5. Response, hearings, and appointment of an appraiser/commissioner
Defendants have a set time to respond under the rules of civil procedure. If the case proceeds, the court may schedule hearings and likely will appoint a commissioner, appraiser, or special master to evaluate property, attempt a physical division, or manage a sale. The court supervises valuation and sale procedures and decides how to allocate costs and proceeds among owners.
6. Partition in kind vs. partition by sale
A partition in kind divides the parcel into separate tracts allocated to owners according to their proportionate shares. If division is not reasonably practicable or would substantially reduce value, the court will order a sale instead. When sold, the court supervises sale terms (private sale vs. public auction) and a distribution plan after paying debts, liens, and court-ordered costs.
7. Liens, mortgages, and creditors
All recorded liens and mortgages typically must be addressed — paid from the sale proceeds or otherwise. Creditors and lienholders should be joined so the court can order appropriate payment or lien satisfaction as part of the distribution.
8. Distribution of proceeds
The court will distribute net proceeds according to ownership shares after paying mortgage liens, judgment liens, commissions for appraisers or sale agents, and court costs. The court may also assess costs against parties who acted unreasonably in litigation.
9. Typical timeline and costs
Timelines vary. A straightforward partition can take several months. Contested cases, complex title issues, or required sales can take a year or more. Costs include court filing fees, service fees, attorney fees, fees for appraisers/commissioners, sale expenses, title searches, and possible escrow fees. Expect seller-type closing costs on a sale plus commissions if sold through an agent; the court may control or approve these amounts.
10. Evidence and documents you should gather
- Recorded deeds showing how title passed (deed to you/from grantor).
- Probate records or letters testamentary if the interest came through an estate.
- Current deed, legal description, and property tax map/lot number.
- Mortgage, promissory notes, and payoff statements for liens on the property.
- Title search or abstract, if available.
- Surveys, plats, or maps that show boundaries.
- Communications or written agreements among co-owners, if any (buyout offers, partition agreements).
11. Outcomes you can expect
The court may: (a) divide the land among owners (partition in kind); (b) order a sale and distribute proceeds; (c) allow one owner to buy out others at a court-determined price; or (d) dismiss the action for procedural defects. The court has discretion to assess costs and attorneys’ fees in certain circumstances.
Helpful Hints
- Talk to co-owners first. A negotiated sale or buyout avoids court costs and delay.
- Check the deed: joint tenancy vs. tenancy in common matters. Joint tenancy with right of survivorship may change who holds title after someone dies.
- Name creditors and lienholders in the complaint so the court can fully resolve title issues in one action.
- Get a title search early. Hidden liens or easements may affect the value or the ability to divide the property.
- Consider mediation or a partition agreement—courts encourage settlements and may require or facilitate mediation in some cases.
- Prepare for the possibility of a court-appointed sale. If you want to buy the property, have financing lined up and be ready to make a formal offer or bid at auction as permitted.
- Keep records of any improvements or payments related to the property (taxes, repairs). In some cases the court may consider contribution claims among co-owners when distributing proceeds.
- Consult a New Hampshire attorney if title is disputed, parties are numerous or unknown, or if you expect complicated creditor claims.
Key legal references
New Hampshire statutes and the court rules govern partition actions and civil procedure. For official state statute text and chapter listings, consult the New Hampshire Revised Statutes at the New Hampshire General Court website: https://www.gencourt.state.nh.us/rsa/html/. For practical information about filing in Superior Court and local procedures, see the New Hampshire Judicial Branch: https://www.courts.state.nh.us/.
When to call an attorney
Work with a New Hampshire real estate attorney if you face any of the following:
- Multiple owners or unknown heirs who are difficult to locate.
- Competing claims to title, adverse possession claims, or boundary disputes.
- Significant mortgages, liens, or creditor claims against the property.
- Complex valuation issues or a likely contested sale (e.g., unique or high-value property).
- If you want to pursue a buyout from co-owners and need an enforceable agreement.
Finding a local attorney: use the New Hampshire Bar Association lawyer referral resources or the Judicial Branch self-help pages to locate qualified counsel. If cost is a concern, ask about limited-scope representation, contingency arrangements (rare in partition matters), or legal aid resources.
Final note: Filing a partition action is an effective way to force resolution when co-owners cannot agree about sale or division. However, litigation can be costly and time-consuming. Explore negotiation, mediation, and informal buyouts before filing if possible.