0232-hb 1448

CHAPTER 232

HB 1448 - FINAL VERSION

SPONSORS: Rep. Rosen, Belk 7; Rep. Salatiello, Belk 2

This bill expands the procedure for partition of real property to include equitable interests or estates in real or personal property.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

Be it Enacted by the Senate and House of Representatives in General Court convened:

547-C:1 Parties. Any person owning a present undivided legal [~~estate in land~~] or equitable interest or estate in real or personal property (hereinafter called "property"), not subject to redemption, or the holder of an equity of redemption shall be entitled to have partition or division in the manner hereinafter provided. If such interest or estate is in fee, he or she shall be entitled to partition or division in fee; if a life estate or a term for years, he or she shall be entitled to partition or division thereof to continue so long as his or her estate or interest 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 [~~land~~] property to be divided shall not prevent partition or division, but such partition or division shall not disturb possession of a lessee under a lease covering the interests of all the co-tenants.

232:2 Petitions for Partition of Property. Amend RSA 547-C:2 to read as follows:

547-C:2 Petition. A petition may be filed by such person in the probate court in the county in which the [~~estate~~] property or any part of the [~~estate~~] property lies or is then located, particularly describing the [~~estate~~] property, the names of all owners or persons interested, if known, and the share or interest of the petitioner in the [~~estate~~] property and praying for partition or division of the [~~estate~~] property. Upon petition by the administrator or upon its own motion, the court may cause any [~~real estate~~] property to be partitioned or divided and awarded or assigned in accordance with procedures described in this chapter. Nothing in this chapter is intended to abrogate common law or statutory authority of the superior and district courts to adjudicate issues of personal property between parties engaged in litigation before those courts.

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 estate~~] 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 estate~~] 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 [~~estate~~] 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:9 Petitionee-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 or division.

7 Trial of Issues; Disposition of Property. Amend RSA 547-C:10 to read as follows:

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 [~~premises~~] property with the petitioner, with a brief statement of matters in defense.

232:8 Judgment for Partition; Quieting Title. RSA 547-C:11 is repealed and reenacted to read as follows:

547-C:11 Judgment for Partition. If the issue 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 by decree set off and assign to the petitioner or petitionee their shares according to their respective rights, titles, or interests, and award costs, as the court deems equitable and just. In so doing, with an appropriate pleading, the court may also quiet title in discharge or extinguishment of any right, title, or interest that may otherwise unlawfully or inequitably encumber or burden the real estate as fully and completely as a court of general equity may do. The court shall make such partition as it decrees by metes and bounds or other distinct description. The partition shall be recorded at the registry of deeds for the county where the real estate lies.

547:11-c Quiet Title. An action may be brought in probate court by any person claiming title to, or any interest in, real or personal property, or both, in partition under RSA 547-C, listed in the estate of a deceased person or listed as guardianship, conservatorship, or trust assets over which the probate court has jurisdiction, against the estate, guardian, conservator, or trustee who may claim to own the same, either in fee, for years, for life or in reversion or remainder, or to have any interest in the same, or any lien or encumbrance thereon, adverse to the plaintiff, or in whom the land records disclose any interest, whether or not the plaintiff is entitled to the immediate or exclusive possession of such property, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the same. In any action brought under this provision, where applicable, the procedure set forth in RSA 498:5-b through 5-d shall be followed.

232:10 Recovery of Costs Against Petitioner. Amend RSA 547-C:17 to read as follows:

547-C:17 Against Petitioner. If on the trial of an issue involving property, as provided in RSA 547-C:10, it is determined that the petitioner has no share or interest in the [~~estate~~] property, or [a] less [~~share~~] than the petitioner claims, the petitionee shall recover the taxable costs of such trial.

232:11 Undisputed Partition; Processing of Petition. Amend RSA 547-C:19 to read as follows:

547-C:19 Petition. If there is no dispute [~~about the title~~], a petition for partition [~~may~~] shall be filed with the judge of probate for the county where the [~~real estate~~] property or the greater part thereof lies or is then located, who shall appoint a time and place of hearing on the petition.

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~~] the [~~estate~~] property, [~~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 [~~Division With Consent~~] Unequal Division and Sale. Whenever [~~an estate~~] 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 [~~of the estate~~] or interest without great prejudice or inconvenience, the whole or a part of the [~~estate~~] property may be assigned[~~, if the parties consent,~~] to one of them, the assignee paying to the others who have less than their share such sums as the [~~committee~~] court shall award or order.

547-C:25 Sale. When the proceedings are pending, if it is alleged in the petition that the [~~estate~~] 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 [~~of the estate~~] or interest without great prejudice or inconvenience and the court so finds, [~~or if, upon the report of the committee that the estate 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 rights, 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:28 Mortgagees, etc. No partition or division of property shall be avoided by any conveyance made by a petitionee after the entry of the petition therefor, nor by any conveyance or other disposition, unless duly recorded or effected 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.

232:16 Awarding or Assigning Property. RSA 547-C:29 is repealed and reenacted to read as follows:

547-C:29 Award. In entering its decree the court may, in its discretion, award or assign the property or its proceeds on sale as a whole or in such portions as may be fair and equitable. In exercising its discretion in determining what is fair and equitable in a case before it, the court may consider: the direct or indirect actions and contributions of the parties to the acquisition, maintenance, repair, preservation, improvement, and appreciation of the property; the duration of the occupancy and nature of the use made of the property by the parties; disparities in the contributions of the parties to the property; any contractual agreements entered into between the parties in relation to sale or other disposition of the property; waste or other detriment caused to the property by the actions or inactions of the parties; tax consequences to the parties; the status of the legal title to the property; and any other factors the court deems relevant.

232:17 New Section; Construction. Amend RSA 547-C by inserting after section 29 the following new section:

547-C:30 Construction. Proceedings under this chapter shall be remedial in nature. The provisions of this chapter are to be liberally construed in favor of the exercise of broad equitable jurisdiction by the probate court in any proceeding pending before it.

AN ACT relative to the partition of real estate and division of property.

The Legislative Budget Assistant has determined that this legislation, as amended by the Senate, has a total fiscal impact of less than $10,000 in each of the fiscal years 2001 through 2004.