A Guide to Wills, Estate, Trust and Guardianship Litigation

In many cases real or personal property is inherited by the heirs of an estate as tenants in common.  In some of these case the heirs cannot agree on what should be done with the jointly held property.  In these cases the law allows parties to file a legal action to force either the division of the property in kind or to force a sale of the property.  Such actions are heard by the Clerk of Superior Court and are known as Actions for Partition.  Young, Moore, and Henderson has an experience group of professionals who can help families divide or sell this property.  The following will be a brief description of the rules that apply to partition proceedings.

1) Partition shall be by Special Proceeding. N.C. Gen. Stat. § 46-1.

2) Venue is in the county in which the land, or some part of it, lies. N.C. Gen. Stat. § 46-2.

3) A Special Proceedings Summons shall be issued and served in accordance with Rule 4 of the North Carolina Rules of Civil Procedure. N.C. Gen Stat. § 1-394.

4) Respondent shall have thirty (30) days to serve a response to the Petition. N.C. Gen. Stat. § 1-394.

5) N.C. Gen Stat. § 46-2.1(b) states:

Written notice shall be included in the petition in a manner reasonably calculated to make the respondent aware of the following: 

1. That the respondent has the right to seek the advice of an attorney and that free legal services may be available to the respondent by contacting Legal Aid of North Carolina or other legal services organizations.
2. That pursuant to G.S. 6-21 the court has the authority, in its discretion, to order reasonable attorneys’ fees to be paid as a part of the costs of the proceeding.

6) It is possible to obtain an extension of time for filing the petition of up to thirty (30) days. N.C. Gen. Stat. § 1-398.

7) The clerk may direct that the land may be surveyed and that the costs of survey be taxed as costs in the action. N.C. Gen. Stat. § 1-408.1.

8) When an estate is joint owner of property and the estate needs to sell property to make assets as required by N.C. Gen. Stat. § 28A-17-3, then the estate may file an action for partition.

9) N.C. Gen Stat. § 46-22 states:

(a) Subject to G.S. 46-22.1(b) [mediation, the court shall order a sale of the property described in the petition, or of any part, only if it finds, by a preponderance of the evidence, that an actual partition of the lands cannot be made without substantial injury to any of the interested parties, after having considered evidence in favor of actual partition and evidence in favor of a sale presented by any of the interested parties. 

(b) In determining whether an actual partition would cause “substantial injury” to any of the interested parties, the court shall consider the following:

1. Whether the fair market value of each cotenant’s share in an actual partition of the property would be materially less than the amount each cotenant would receive from the sale of the whole.
2. Whether an actual partition would result in material impairment of any cotenant’s rights.

(b1) The court, in its discretion, shall consider the remedy of owelty where such remedy can aid in making an actual partition occur without substantial injury to the parties.

(c) The court shall make specific findings of fact and conclusions of law supporting an order of sale of the property.

(d) The party seeking a sale of the property shall have the burden of proving substantial injury under the provisions of this section.

10) C. Gen Stat. § 1-301.2(h) states:

(h) Exception for Partition Proceedings. — Notwithstanding the provisions of subsection (b) of this section, the issue whether to order the actual partition or the sale in lieu of partition of real property that is the subject of a partition proceeding shall not be transferred and shall be determined by the clerk. The clerk’s order determining this issue, though not a final order, may be appealed pursuant to subsection (e) of this section.

11) The Court shall appoint three commissioners to divide the property. N.C. Gen. Stat. § 46-7.  The clerk shall fix the compensation of the commissioners. N.C. Gen. Stat. § 46-7.1. The fees of  the commissioners may be taxed as part of the costs of the case. N.C. Gen. Stat. § 1-408.

12) The commissioners must file a report within ninety (90) days, which 90 days can only be extended for an additional period of up to sixty (60) days. N.C. Gen. Stat. § 46-17.

13) Exceptions to the report of the commissioners must be filed within ten (10) days. N.C. Gen. Stat. § 46-19.

14) N.C. Gen. Stat. § 46-19(b) states:

(b) If an exception to the report of commissioners is filed, the clerk shall do one of the following:

Confirm the report;

1. Recommit the report for correction or further consideration;
2. Vacate the report and direct a reappraisal by the same commissioners; or
3. Vacate the report, discharge the commissioners, and appoint new commissioners to view the premises and make a partition of them.

15) N.C. Gen. Stat. § 46-19(c) states:

(c) Appeal from the clerk to superior court of an order of confirmation of the report of commissioners is governed by G.S. 1-301.2 except that the judge may take only the actions specified in subsection (b) of this section and may not adjudge a partition of the land different from that made by the commissioners.

16) N.C. Gen. Stat. § 46-20 states:

Such report, when confirmed, together with the decree of confirmation, shall be enrolled and certified to the register of deeds and registered in the office of the county where such real estate is situated, and shall be binding among and between the claimants, their heirs and assigns. It shall not be necessary for the clerk of court to probate the certified papers required to be registered by this section.

17) N.C. Gen. Stat. § 46-21 states:

In case owelty of partition is charged in favor of certain parts of said land and against certain other parts, the clerk shall enter on the judgment docket the said owelty charges in like manner as judgments are entered on said docket, persons to whom parts are allotted in favor of which owelty is charged being marked plaintiffs on the judgment docket, and persons to whom parts are allotted against which owelty is charged being marked defendants on said docket; said entry on said docket shall contain the title of the special proceeding in which the land was partitioned, and shall refer to the book and page in which the said special proceeding is recorded; when said owelty charges are paid said entry upon the judgment docket shall be marked satisfied in like manner as judgments are cancelled and marked satisfied; and the clerk shall be entitled to the same fees for entering such judgment of owelty as he is entitled to for docketing other judgments: Provided, that the docketing of said owelty charges as hereinbefore set out shall not have the effect of releasing the land from the owelty charged in said special proceeding: Provided, any judgment docketed under this section shall not be a lien on any property whatever, except that upon which said owelty is made a specific charge.

18) N.C. Gen. Stat. § 46-28(a) and (b) state: The procedure for a partition sale shall be the same as is provided in Article 29A of Chapter 1 of the General Statutes [Judicial Sales], except as provided herein.

The commissioners shall certify to the court that at least 20 days prior to sale a copy of the notice of sale was sent by first class mail to the last known address of all petitioners and respondents who previously were served by personal delivery or by registered or certified mail. The commissioners shall also certify to the court that at least ten days prior to any resale pursuant to G.S. 46-28.1(e) a copy of the notice of resale was sent by first class mail to the last known address of all parties to the partition proceeding who have filed a written request with the court that they be given notice of any resale. An affidavit from the commissioners that copies of the notice of sale and resale were mailed to all parties entitled to notice in accordance with this section shall satisfy the certification requirement and shall also be deemed prima facie true. If after hearing it is proven that a party seeking to revoke the order of confirmation of a sale or subsequent resale was mailed notice as required by this section prior to the date of the sale or subsequent resale, then that party shall not prevail under the provisions of G.S. 46-28.1(a)(2) a. and b.

19) N.C. Gen. Stat. § 46-28.1 states:

(a) Notwithstanding G.S. 46-28 or any other provision of law, within 15 days of entry of the order confirming the partition sale or real property, any party to the partition proceeding or the purchaser may petition the court to revoke its order of confirmation and to order the withdrawal of the purchaser’s offer to purchase the property upon the following grounds:

1. In the case of a purchaser, a lien remains unsatisfied on the property to be conveyed.
2. In the case of any party to the partition proceeding:
   • Notice of the partition was not served on the petitioner for revocation as required by Rule 4 of the Rules of Civil Procedure; or
   • Notice of the sale was not mailed to the petitioner for revocation as required by G.S, 46-28(b); or
   • The amount bid or price offered is inadequate and inequitable and will result in irreparable damage to the owners of the real property.

In no event shall the confirmation order become final or effective during the pendency of a petition under this section. No upset bid shall be permitted after the entry of the confirmation order.

(b) The party petitioning for revocation shall deliver a copy of the petition to all parties required to be served under Rule 5 of G.S. 1A-1, and the officer or person designated to make such sale in the manner provided for service of process in Rule 4(j) of G.S. 1A-1. The court shall schedule a hearing on the petition within a reasonable time and shall cause a notice of the hearing to be served on the petitioner, the officer or person designated to make such a sale and all parties required to be served under Rule 5 of G.S. 1A-1.

(c) In the case of a petition brought under this section by a purchaser claiming the existence of an unsatisfied lien on the property to be conveyed, if the purchaser proves by a preponderance of the evidence that:

1. A lien remains unsatisfied on the property to be conveyed; and
2. The purchaser has not agreed in writing to assume the lien; and
3. The lien will not be satisfied out of the proceeds of the sale; and
4. The existence of the lien was not disclosed in the notice of sale of the property, the court may revoke the order confirming the sale, order the withdrawal of the purchaser’s offer, and order the return of any money or security to the purchaser tendered pursuant to the offer.

The order of the court in revoking an order of confirmation under this section may not be introduced in any other proceeding to establish or deny the existence of a lien.

(d) In the case of a petition brought pursuant to this section by a party to the partition proceeding, if the court finds by a preponderance of the evidence that petitioner has proven a case pursuant to sub-subdivision (a)(2)a., b., or c. of this section, the court may revoke the order confirming the sale, order the withdrawal of the purchaser’s offer, and order the return of any money or security to the purchaser tendered pursuant to the offer.

(d1) In the case of a petition brought pursuant to sub-subdivision (a)(2)c. of this section, and when an independent appraisal of the property being sold has not been previously entered into evidence in the action, and upon the request of any party, the court may order an independent appraisal prepared by a real estate appraiser currently licensed by the North Carolina Appraisal Board and prepared in accordance with the Uniform Standards of Professional Appraisal Practice. The cost of an independent appraisal shall be borne by one or more of the parties requesting the appraisal in such proportions as they may agree. Before ruling on the petition brought pursuant to sub-subdivision (a)(2)c. of this section, the court may in its discretion require written evidence from the appraiser that the appraiser has been paid in full for the appraisal. If based on the appraisal and all of the evidence presented, the court finds the amount bid or price offered to be inadequate, inequitable, and resulting in irreparable damage to the owners, the court may revoke the order confirming the sale, order the withdrawal of the purchaser’s high bid or offer, and order the return to such purchaser of any money or security tendered by the purchaser pursuant to the high bid or offer.

(e) If the court revokes its order of confirmation under this section, the court shall order a resale. The procedure for a resale is the same as is provided for an original public sale under Article 29A of Chapter 1 of the General Statutes.

(f) An order confirming the partition sale of real property becomes final and effective 15 days after entry of the order of confirmation or when the clerk denies a petition for revocation, whichever occurs later. A party may appeal an order confirming the partition of sale of real property within 10 days of the order becoming final and effective. 

Personal property may also be partitioned under the above rules. N.C. Gen. Stat. § 46­42-44.

Costs and attorney’s fees incurred in special proceedings for the division and sale of real or personal property under the Chapter entitled “Partition” may be taxed against either party or apportioned among the parties, in the discretion of the Court.  N.C. Gen. Stat. § 6-21(7).