Selling Property in a Partition Action in New Hampshire: Process, Steps, and Tips

Overview

This article explains how a court typically sells real property when co-owners cannot divide it and a partition action proceeds under New Hampshire law. It describes the usual steps, what parties can expect, and practical tips for protecting your interests. This is educational information only and is not legal advice. For advice tailored to your situation, consult a New Hampshire attorney.

Detailed Answer

When joint owners (co-owners) cannot agree to divide or otherwise dispose of real property, any owner can ask the court to force a division through a partition action. New Hampshire’s partition statute governs these cases; see RSA chapter 547 for the statutory framework (RSA 547). A sale happens only after the court evaluates whether the property can be divided equitably (a partition in kind). If division in kind is impractical or would unfairly reduce value, the court will order sale and division of proceeds.

Step-by-step process (typical)

1. Prepare and file a partition complaint. A plaintiff (a co-owner) files a complaint in the appropriate New Hampshire court naming all record owners and any lienholders with an interest in the property. The complaint asks the court to (a) determine ownership shares and (b) direct either division or sale. See RSA chapter 547 (partition actions).
2. Service and responses. All named parties must be served with the complaint and given an opportunity to respond. Parties can assert defenses, claim different ownership shares, or propose alternatives—such as a buyout or specific division.
3. Court review and preliminary matters. The court examines title documents, deeds, mortgages, and other encumbrances. It will determine who has an interest that must be accounted for when proceeds are distributed.
4. Attempted partition in kind. The court considers whether the land can be divided physically (partition in kind) so each owner receives a separate piece. If division in kind is practical and fair, the court may order physical division. If division would impair value, cause undue prejudice, or be impracticable, the court is likely to order a sale of the whole property.
5. Appointment of commissioners or a special master. If the court orders sale or needs a valuation or plan for dividing the property, it commonly appoints neutral commissioners or a special master to survey, value, and propose a plan. The commissioners file a written report with the court showing their findings and recommendations.
6. Court orders sale and sets method. When sale is necessary, the court issues an order authorizing sale and stating how the sale must occur. The order may specify a public auction, sealed bids, or a private sale (sometimes with court approval of the eventual sale price). The court often appoints a commissioner or an auctioneer to handle the sale and requires appropriate notice to interested parties.
7. Notice and marketing. The court’s order and the appointed officer typically require published notice, posting, and direct notice to interested parties. The officer follows the court’s instructions for advertising and conducting the sale so the sale is legally defensible.
8. Sale, report, and court confirmation. After the sale, the officer files a report accounting for the sale price, expenses of sale, and recommended distribution. The court reviews and either confirms or rejects the sale. Confirmation protects the purchaser’s title from later attacks.
9. Payment of liens, costs, and distribution of proceeds. From sale proceeds, valid liens and mortgages and costs of the action (including commissions and sale expenses) are paid first. Remaining proceeds are distributed to owners according to their ownership shares or as the court determines after resolving competing claims. If the sale produces surplus beyond liens and costs, owners receive their pro rata shares. If deficits occur, the court may apportion shortfalls among owners according to interest or otherwise as justice requires.
10. Final accounting and deed. Once the court confirms sale and distribution, the purchaser receives clear title (via the deed issued per the court order), and the partition case concludes with a final accounting entry on the court record.

Key statutory reference

New Hampshire’s partition law is codified in RSA chapter 547. For statutory language and section-by-section detail, consult the New Hampshire Revised Statutes Annotated, chapter 547: https://www.gencourt.state.nh.us/rsa/html/VII/547/547-1.htm (start at section 547:1 and review the full chapter to locate provisions on procedure, appointment of commissioners, sale, and distribution).

Practical consequences and issues to anticipate

• Mortgages and liens survive until paid: A sale will first satisfy mortgages and properly recorded liens. Buyers will expect clear title or a court order clearing title concerns.
• Buyout opportunities: Sometimes a co-owner can buy out others at a negotiated price to avoid a public sale. Courts may prefer settlements where feasible.
• Timing: Partition suits often take several months. Complex title issues, environmental concerns, or disputes over valuations can lengthen the process.
• Costs and taxes: Sale expenses, attorney fees, and taxes reduce proceeds distributed to owners. Capital gains or other tax consequences may apply—consult a tax advisor.

Helpful Hints

• Gather paperwork early: Deeds, mortgage statements, tax bills, surveys, leases, and evidence of improvements help the court and commissioners assess ownership and value.
• Try to negotiate first: A voluntary sale or buyout saves time and expense. Consider mediation or a facilitated settlement before filing suit.
• Request a survey or appraisal: A neutral appraisal and an up-to-date survey clarify whether physical division is practical.
• Keep communication records: Save emails, texts, and letters about offers, refusals, and discussions—these can help in court.
• Protect improvements and rents: If tenants or renters occupy the property, clarify who collects rent and who pays expenses while the action proceeds.
• Expect the court to protect lienholders: Properly recorded creditors must be given notice and will be paid from sale proceeds before owners receive distributions.
• Work with counsel for complex title issues: Disputed deeds, adverse possession claims, or unrecorded interests complicate partition cases and benefit from legal guidance.

Next steps

If you are a co-owner considering partition, review your title documents, collect contact information for all owners and lienholders, and consult a New Hampshire attorney experienced in real property litigation to discuss whether a negotiated solution is possible and what the partition process will look like in your county’s court.

Disclaimer: This article is educational and does not constitute legal advice. Laws change and facts matter. For advice specific to your situation, consult a licensed attorney in New Hampshire.