SB 185 - AS AMENDED BY THE SENATE
2/3/00 3040s
1999 SESSION
04/02
SENATE BILL 185
AN ACT relative to the partition of real or personal property.
SPONSORS: Sen. Trombly, Dist 7; Rep. DeChane, Straf 6; Rep. Splaine, Rock 34
This bill authorizes the probate court to order a partition of real or personal property where legal or equitable rights or interests in such property is at issue.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
2/3/00 3040s
99-0638
04/02
STATE OF NEW HAMPSHIRE
In the Year of Our Lord One Thousand Nine Hundred and Ninety-Nine
AN ACT relative to the partition of real or personal property.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Partition of Real Property; Chapter Heading Amended. The chapter title of RSA 547-C is amended to read as follows:
PARTITION OF REAL AND PERSONAL PROPERTY
2 Partition of Property. RSA 547-C is repealed and reenacted to read as follows:
547-C:1 Parties. Any person owning a present undivided legal or equitable interest in real or personal property, not subject to redemption, or the holder of an equity of redemption shall be entitled to have partition in the manner hereinafter provided. If such interest is in fee, he or she shall be entitled to partition in fee; if a life estate or a term for years, he or she shall be entitled to partition thereof to continue so long as his or her estate endures. A life tenant, remainderman, or a tenant for years of whose term at least 20 years remains unexpired may, in the exercise of the court's equitable powers, have partition of the fee. The existence of a lease of the whole or a part of the real property to be divided shall not prevent partition, but such partition shall not disturb possession of a lessee under a lease covering the interests of all the co-tenants.
547-C:2 Petition. A petition may be filed by such person in the probate court in the county in which the real or personal property or any part of the property is located, particularly describing the property, the names of all owners or persons interested, if known, and the share of the petitioner in the property and praying for partition of the property. Upon petition by the administrator or upon its own motion, the court may cause any real or personal property to be partitioned, divided, awarded, or assigned in accordance with procedures described in this chapter.
547-C:3 Appeal. In cases where a right to jury trial is guaranteed by the constitution, a person may, at the time judgment by the probate court is declared, appeal therefrom to the superior court. The appeal shall be entered 15 days from the date of the register's issuance of the notice of decision unless for good cause shown the time is extended by the superior court. If a trial by jury is requested, the superior court shall expedite such request and schedule the case for trial in as timely a manner as possible and may cause any real or personal property to be partitioned or divided in accordance with procedures described in this chapter. In all cases which are so appealed, it shall be the duty of the superior court to transmit to the judge of the probate court, within 10 days after the case is finally disposed of, a certificate showing the final disposition of the case.
547-C:4 Owner Unknown. If the persons interested in any such real or personal property with the petitioner are unknown, it shall be described in the petition in the same manner as is required in the case of taxing unimproved lands of nonresidents, specifying the share held by each petitioner, and stating that it is held with persons unknown.
547-C:5 Notice. The petitioner shall give notice to all persons interested in the real or personal property, by causing the petition and order of notice thereon to be served on each in the same manner that writs of summons are required to be served.
547-C:6 Publication of Petition. If any petitionee or his residence is unknown, or if petitionee resides out of the state and has not had personal notice, the court shall order publication of the petition and order of notice, and may fix the time of the last publication.
547-C:7 Additional Notice. If any petitioner is absent at the time of the service of the petition, and has not returned, and does not appear at the sitting of the court at which the petition is entered, it may be continued and further notice ordered.
547-C:8 Appointing Agents. If any petitionee is a minor, or otherwise incapacitated to take care of his estate, partition shall not be made until a guardian or agent has been appointed. Such guardian or agent may be appointed by the court.
547-C:9 Owner Unknown. If any petitionee is unknown the court may, in its discretion, appoint an agent to aid and advise in petitionee's behalf in making the partition.
547-C:10 Trial of Issues. Matters alleged in the petition may be denied or avoided by the petitionee by plea, and further proceedings may be had, and an issue of fact or of law made and tried, as upon a writ at common law or a bill in equity, and the court shall have full power to determine the respective interests of all the parties; or the petitionee may file a plea denying that the petitionee holds any part of the real or personal property with the petitioner, with a brief statement of matters in defense.
547-C:11 Judgment for Partition; Committee. If the issue involves real property and is determined in favor of the petitioner, or if after notice the petitionee does not appear, or if no sufficient objection is made, the court shall render judgment that partition be made, and shall appoint a committee, consisting of 3 suitable persons, resident of the county, to make partition of the real property, to set off the shares of the several petitioners according to their respective titles and to award costs as they deem just.
547-C:12 Oath; Notice. The committee shall be sworn. They shall appoint a time and place of hearing, and cause notice thereof in writing, signed by the chairperson, to be served upon each person interested, or each interested person's agent or attorney, or to be left at each interested person's abode at least 7 days before the day of hearing.
547-C:13 Publication of Notice. If any petitionee or petitionee's residence is unknown the committee shall cause the notice to be published.
547-C:14 Setoff; Report. The committee shall make partition of the real property as directed in their commission, by setting off to each petitioner his or her just share thereof, according to his or her right, by proper metes and bounds or other distinct description, and shall return to the court a full report of their doings, with a particular description of each portion of the real property so set off.
547-C:15 Judgment; Record. If no sufficient objection appears, the court shall render judgment upon the report. The partition so made shall be recorded in the registry of deeds for the county where the real property lies.
547-C:16 Costs. The probate court shall award the costs of making the partition, and apportion the same in such manner as they deem just.
547-C:17 Against Petitioner. If on the trial of an issue involving real or personal property, as provided in RSA 547-C:10, it is determined that the petitioner has no share or interest in the property, or a less share than the petitioner claims, the petitionee shall recover the taxable costs of such trial.
547-C:18 Failure to Enter, Etc. If the petitioner fails to enter or prosecute his or her petition, costs shall be awarded in favor of all the petitionees upon whom service was made.
547-C:19 Petition. If there is no dispute about the title to real or personal property, a petition for partition may be filed with the judge of probate for the county where the real or personal property or the greater part thereof is located, who shall appoint a time and place of hearing on the petition.
547-C:20 Notice. Notice of the petition and hearing shall be given to all parties interested, by giving to each in hand, or leaving at their abode, an attested copy of the petition and order of notice, at least 14 days before the day of hearing, or by causing the same to be published.
547-C:21 Procedure. If on the hearing no sufficient objection appears, the judge shall cause partition to be made by a committee, who shall be appointed, be sworn, give notice and proceed, and the court shall appoint guardians or agents for all minors or persons incapacitated, and agents for all persons unknown or out of the state, interested in such estate, receive and accept the report of such committee, and render judgment and award costs thereon, in the manner prescribed in this chapter.
547-C:22 Unequal Division and Sale. Whenever real or personal property is so situated or is of such a nature that it cannot be divided so as to give each owner his or her share or interest without great prejudice or inconvenience, the whole or a part of the real or personal property may be assigned, to one of them, the assignee paying to the others who have less than their share such sums as the probate court shall award.
547-C:23 Recommitment. If it appears to the court that the real property is divisible it shall recommit the report to the committee with instructions as to the division of the real property.
547-C:24 Sale. When the proceedings are pending, if it is alleged in the petition that the real or personal property is so situated or is of such a nature that it cannot be divided so as to give each owner his or her share or interest without great prejudice or inconvenience and the court so finds, or if, upon the report of the committee that the real property at issue is of the nature aforesaid, the court so finds, the court may order it to be sold and the proceeds from the sale to be divided among the owners according to their respective titles or interests, and may make all other orders that may be necessary to cause such sale and the distribution of the proceeds, as a court of equity may do in like cases.
547-C:25 Distribution Deferred. When it appears that an owner not residing within the territorial limits of the United States of America or any territorial possession thereof would not have the benefit or use or control of such proceeds due them and that special circumstances make it desirable that delivery of such proceeds to them be deferred, the court may order that such proceeds be paid to the state to be invested by the state treasurer and handled subject to such further order as such court may enter; provided a reasonable fee, as allowed by the court, of the attorney for any such owner shall be considered a lien thereon and shall be paid by the fiduciary having such funds in charge to such attorney prior to payment to the state treasurer.
547-C:26 Further Notice. If due notice to the petitionees has not been given, the court may continue the case and order such further notice of the pendency thereof as it may deem just, and when the order has been complied with it shall proceed with such division.
547-C:27 Mortgagees, etc. No partition shall be avoided by any conveyance made by a petitionee after the entry of the petition therefor, nor by any conveyance or other legal disposition, unless duly recorded at the date of such entry, nor by any mortgage, attachment or lien thereon, whenever made, nor by the death of either party; but the share or interest of each petitioner shall be set off in severalty, and be subject to all legal claims thereon, as if the claimant had been a party thereto.
547-C:28 Legal Owner. If in making partition a share or interest is set off to any person other than the legal or equitable owner, such share or interest inures to the benefit of the legal or equitable owner, his or her heirs or assigns, as if it had been set off to the legal or equitable owner.
3 Effective Date. This act shall take effect January 1, 2001.