Detailed Answer: How to start a partition lawsuit in New Hampshire when co‑owners (heirs) won’t agree
Disclaimer: This is general information and not legal advice. Consult a licensed New Hampshire attorney for advice about your specific situation.
Partition is the legal process that divides jointly owned real property so each owner gets a fair share. In New Hampshire, co‑owners (including heirs who inherit property as tenants in common) can ask a court to order partition when owners cannot agree on use, sale, or division. New Hampshire law governing partition actions is found in RSA Chapter 547. See RSA 547 for the statutory framework: N.H. Rev. Stat. Ann. Chapter 547 (Partition).
Typical scenario (hypothetical)
Suppose four siblings inherit a 10‑acre parcel as tenants in common after their parent’s probate. Three siblings want to sell their shares but one sibling refuses. The three can file a partition action in the New Hampshire Superior Court asking the court to either physically divide the land (partition in kind) or order a sale and split the proceeds (partition by sale).
Who can file
- Any person who owns an undivided interest in real property with others (co‑owners, tenants in common) may bring a partition action.
- Heirs named by probate who hold title as co‑owners likewise can file.
Where to file
File a civil action in the New Hampshire Superior Court in the county where the property is located. The court handles partition actions and has authority to order division or sale and allocate proceeds.
Basic steps to start a partition lawsuit
- Collect documentation. Gather the deed, probate papers (if inherited), title report, tax bills, mortgage statements, surveys, and any written agreements among owners.
- Identify all owners and interested parties. List all record owners, spouses with potential dower/curtesy or community property interests (if any), and lienholders or mortgagees who must be notified and may have to be paid from sale proceeds.
- Attempt a pre‑suit demand and negotiation. Send a clear written demand asking for partition, sale, or buy‑out. Courts favor attempts at resolution; a demand can also provide evidence you tried to resolve the dispute.
- Prepare and file the complaint for partition. The complaint typically states: plaintiff’s ownership share, the names and addresses of all co‑owners and lienholders, a description of the property, and the relief requested (partition in kind or sale, appointment of a commissioner, accounting, costs, and attorney’s fees). You will pay filing fees and must follow Superior Court civil procedure rules.
- Serve all defendants and lienholders. Proper service on every co‑owner and recorded lienholder is required. If someone is unknown or cannot be found, the court may allow alternative service methods or publication in limited circumstances.
- Temporary orders and possession. Plaintiffs may request temporary orders to preserve the property, prevent waste, or control rents, timbering, or use during the litigation.
- Court evaluation and possible appointment of a commissioner. The court may appoint a commissioner or master (often someone with appraisal expertise) to inspect the property, report on whether partition in kind is practicable, and recommend sale terms if necessary.
- Partition in kind vs partition by sale. The court prefers partition in kind when the property can be fairly divided without prejudicing owners. If division would be impractical or inequitable, the court will order a sale and divide proceeds according to ownership interests after paying liens, costs, and credits.
- Accounting and distribution. After division or sale, the court orders accounting: payment of mortgages, liens, property taxes, costs, and apportions proceeds to owners based on their legal interests and any equitable adjustments (improvements, contributions, or rents paid by one owner).
Key legal points under New Hampshire law
- Partition actions are governed by RSA Chapter 547. You can read the statutory language here: RSA 547. The chapter explains who may bring action and the court’s powers.
- The court has discretion to order partition in kind or by sale based on practicality and fairness.
- All interested parties, including mortgagees and lienholders, must be joined or notified because their claims may affect proceeds distribution.
- Equitable adjustments: courts can account for improvements, waste, and contributions. One co‑owner who paid taxes, mortgage, or made major improvements may receive credit before proceeds are divided.
Practical considerations and timeline
Partition litigation can take many months to over a year depending on complexity, title issues, contested valuations, disputes about practicability of division, and court scheduling. Costs include filing fees, service, survey and appraisal fees, commissioner fees, attorney’s fees, and possibly sale expenses. If you seek a buyout, a negotiated sale to one owner is often faster and cheaper than litigation.
When to consider alternatives to court
- Mediation or neutral evaluation to explore buyouts or coordinated sale.
- One owner offering a cash buyout based on an independent appraisal.
- Partition by agreement executed and recorded voluntarily among owners.
When to get an attorney
Consult a New Hampshire real estate litigator if title is unclear, heirs are numerous, liens or mortgages exist, other parties contest ownership, or you expect complex equitable claims. An attorney can prepare the complaint, handle service, coordinate appraisals/surveys, and argue for credits or allocation of costs. If funds are limited, talk to an attorney about unbundled services or limited representation for discrete steps (e.g., drafting the complaint or negotiating a buyout).
Helpful Hints
- Start with a title search and probate documents to confirm who legally owns the property.
- Gather receipts for taxes, mortgage payments, and improvements—these matter in the court’s accounting.
- Get at least one independent appraisal early to frame settlement or buyout offers.
- Consider mediation before filing suit—courts view settlement attempts favorably and it can save time and money.
- Notify mortgage lenders early. A mortgage must usually be paid or assumed at sale; lenders may require payoff statements or consent.
- Expect the court to prefer division in kind only when it is practical and fair. Otherwise, a sale is more likely.
- Document communications with co‑owners. Written offers, demand letters, and proof of attempts to resolve the issue help in court.
- If you plan to live on the property while litigation proceeds, get written permission from the court or a temporary order so your occupancy is protected.
For the statutory text and more details on partition actions under New Hampshire law, see RSA Chapter 547: https://www.gencourt.state.nh.us/rsa/html/XLIII/547/547-1.htm.
If you want help finding a New Hampshire attorney experienced in partition and real estate disputes, consider contacting the New Hampshire Bar Association referral service or a local county bar lawyer referral program.