How to start a partition action in New Hampshire when co-owners can’t agree

If two or more people own the same parcel of real estate and they cannot agree about what to do with it, a partition action is the court procedure used to divide the property or force a sale and distribute the proceeds. This article explains, for a reader with no legal background, how partition actions work in New Hampshire and the practical steps to start one.

Detailed answer

What a partition action asks the court to do

A partition action is a civil lawsuit asking a court to either:

• Divide the property among the owners (partition in kind) so each owner gets a physical portion, or
• Order a sale of the property and divide the sale proceeds among the owners according to their ownership interests.

Courts generally prefer partition in kind if it is practical and fair. If the property cannot be fairly divided (for example, a single house on one lot), the court may order a sale and split the proceeds after paying mortgages, liens, costs, and expenses.

Who can file a partition action in New Hampshire

Any person who holds a real property interest (for example, a tenant in common or joint tenant) can file. Lienholders or mortgagees who have recorded interests in the property may also need to be joined because their rights affect proceeds from any sale.

Where to file

File the partition complaint in the New Hampshire Superior Court for the county where the property is located. For information about court locations, filing procedures, and court rules, see the New Hampshire Judicial Branch at https://www.courts.state.nh.us/ and the Superior Court page at https://www.courts.state.nh.us/superior/. New Hampshire statutes and procedural rules that govern civil actions are available at the New Hampshire RSA index: https://www.gencourt.state.nh.us/rsa/html/indexes/default.html.

Step-by-step: How to start the case

1. Collect documents

   Gather the deed(s), mortgage(s), tax bills, lease(s), recent title report or title insurance policy if available, survey or plot plan, and any written agreements among owners. These items show who owns what and whether there are recorded liens.

2. Identify all necessary parties

   List every person or entity with a recorded interest: all owners of record, mortgagees, judgment lienholders, and occupants. New Hampshire law requires that those whose interests would be affected be named or served in the case so the court can bind them by its orders.

3. Prepare the complaint

   The complaint for partition should describe the property, state each party’s claimed interest, explain that co-owners cannot agree, and ask the court to divide or sell the property and to order an accounting for rents, profits, taxes, and expenses. You can ask the court to appoint commissioners to make a survey or supervise a sale.

4. File in Superior Court and serve the defendants

   File the complaint and any required civil cover forms with the Superior Court clerk for the county where the property sits. Pay the filing fee and request issuance of summonses. Serve the complaint and summons on all defendants under the New Hampshire Rules of Civil Procedure. If a defendant cannot be located, the court may allow service by publication in limited circumstances.

5. Proceedings after filing

   After service, defendants may answer and raise defenses or counterclaims. The court may set hearings, ask for appraisals or surveys, appoint neutral commissioners to recommend a division or oversee a sale, or direct a sale at public auction. The court will resolve disputes and then enter an order implementing partition or sale.

How the court handles liens, mortgages, rents, and costs

Recorded mortgages and valid liens generally get paid from sale proceeds before owners receive their shares. The court can order an accounting of rents, profits, taxes, and necessary repairs or costs of sale and deduct those amounts from the proceeds. If one co-owner has been occupying the property and collecting rents or has caused damage, the court can adjust distributions to address fairness.

Practical alternatives to suing

• Negotiate a buyout so one owner buys the other(s) at an agreed value.
• Use mediation to reach an agreement on use, sale, or division without court involvement.
• Agree on a private sale with a neutral appraisal and split net proceeds by ownership share.

Mediation or negotiation often saves time and cost compared with litigation.

Typical timeline and costs

Time depends on complexity. A straightforward case may take several months; contested cases with appraisal disputes, multiple liens, or appeals can take a year or more. Costs include court filing fees, sheriff or process server fees, appraisal and survey fees, commissioners’ fees, escrow and closing costs for a sale, and attorney fees. In some circumstances the court may order payment of reasonable attorney fees by one party, but that is discretionary.

When to hire a New Hampshire attorney

Talk to a New Hampshire real estate litigator if the ownership interests are unclear, there are multiple liens or mortgages, a co-owner is occupying the property and refuses to cooperate, or you need help with service, valuations, or strategy. An attorney can prepare the complaint, represent you at hearings, and advise about settlement options that avoid a forced sale.

For procedural rules on pleading, service, and default, see the New Hampshire Rules of Civil Procedure at https://www.courts.state.nh.us/rules/. For general statutory references and texts, use the New Hampshire RSA website at https://www.gencourt.state.nh.us/rsa/html/indexes/default.html. For court forms and local filing guidance, see the New Hampshire Judicial Branch at https://www.courts.state.nh.us/.

Helpful Hints

• Start by collecting deeds, mortgage and lien documents, tax bills, and any written agreements among owners.
• Talk to co-owners about mediation before filing — it can save time and money.
• Get a current market appraisal to understand value and to support negotiations or the court process.
• If you plan to file, identify and list all people and entities with recorded interests to avoid missing parties and delaying service.
• Keep careful records of payments, repairs, and rents. The court may order an accounting that affects distributions.
• If a co-owner lives on the property, consider asking the court for interim orders about possession, rent, and expenses while the case proceeds.
• Understand tax consequences: sale proceeds and buyouts can have income tax effects. Consult a tax advisor.
• Budget for appraisal, survey, and court costs — litigation is often more expensive than settlement attempts.

Disclaimer: This information explains general New Hampshire procedures for partition actions. It is educational only and not legal advice. For advice about a specific situation, consult a licensed New Hampshire attorney.