If you are an unmarried couple, business partners, or friends who decide jointly to purchase real estate in New Hampshire, there may come a time where one of you wants to get out of ownership of that real estate and the other wants to keep it. If a couple is married, the property is considered part of the marital estate, which would be handled in any divorce proceeding, even if it was purchased by one of the married person’s name and. Absent marriage, when two people own real estate together in New Hampshire there is a legal process called a “partition” action in which they can divide their property. However, it does not necessarily mean that if they both own it, there is a guaranteed 50/50 split. New Hampshire Statute RSA 547-C permits one or both of individuals holding real estate to file an action in the Superior or Probate Division of the Circuit Court for the county where the property lies. The Court will then have the ability to unequally divide the property and one of them has the option to pay the other for his/her share for the property or a sale will be ordered by the Court and thereafter the net proceeds being divided equally or unequally as the Court determines the respective interest of the individuals. The Court can consider the following factors in determining what is fair and equitable for the division of the real estate: (a) the direct or indirect actions and contributions of the parties to acquisition, maintenance, repair, preservation, improvement and appreciation of the property; (b) the duration of the occupancy and the nature of use made of the property by the parties; (c) disparities in the contributions of the parties to the property; (d) contractual agreements entered into between the parties in relationship to the sale or other disposition of the property; (e) waste or other detriment caused to the property by the actions or inactions of the parties; (f) tax consequences to the parties; (g) the status of the legal title to the property; and (h) other factors the court deems relevant. Simply put, merely because the deed states the property is held as 50/50% tenants in common or joint tenants with rights of survivorship does not end the analysis of who gets what of an award of the real estate equity. For example, if one of the parties paid the full purchase price without financing then the other person helped with paying the taxes, insurance and upkeep of the real estate, the judge may find that the person that paid the full purchase price is entitled to a greater percentage of the property ownership in a partition action. Filing a petition for partition may force the hand of the other person who wants to stay in the property to either refinance or buyout the co-owner and thereby improve his ability to finance a new home of his own. Once the partition action is filed and discovery occurs, it is frequent that the parties can reach a settlement in the case and if not they have set it up well for the court to make a decision.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].