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Petitions to Partition in North Carolina

Posted by Inez de Ondarza Simmons | Sep 14, 2019 | 0 Comments

Forced sale of shared real property
Partition and Judicial Sale in North Carolina

Petitions to Partition in North Carolina

Frequently, real property, like raw land, a home, or the family farm, is owned by more than one person. For example, a parent may die, leaving the family land to all the children in equal shares, so that each child has an equal, undivided right to the land. This make the children tenants in common. Similarly, if a married couple gets divorced but does not divide the marital real estate through equitable distribution, the divorced couple also become tenants in common.

Physical Partition vs. Judicial Sale (Forced Sale)

When tenants in common cannot agree on how to use their real property or whether to sell it, then one or more of them can petition the court to partition the property.  If it is feasible, the court can physically divide the property, awarding part of it to each tenant in common.  If physical division is not feasible, the court can order the property to be sold and the proceeds to be distributed among the tenants in common.

How real property is partitioned in North Carolina – the basics

In North Carolina, partition actions are special proceedings brought before the Clerk of Court, who is the judge in these cases. The Clerk of Court can appoint Commissioners who will have the property appraised of the property and will oversee its sale.

Procedure for North Carolina partition actions

The proceeding for partition, actual or by sale, must be instituted in the county where the land or some part it lies. If the land to be partitioned consists of one tract lying in more than one county, or consists of several tracts lying in different counties, proceedings may be instituted in either of the counties in which a part of the land is situated.  In that case, the Court of the county where the partition proceedings are first brought has jurisdiction over the disposition of all of the property.  Once the sale is final, the proceeds will be deposited with the Clerk of Court and will be divided and awarded according to each tenant's property ownership rights.

About the Author

Inez de Ondarza Simmons

Exceptional Legal Services since 2005 Inez de Ondarza Simmons founded de Ondarza Simmons, PLLC, which handles civil litigation cases in Raleigh and throughout North Carolina in State and Federal courts, including Business and Real Estate Litigation Estate Planning Eminent Domain and Loca...

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