When two or more people co-own real estate (for example, as tenants in common or joint tenants), their shared ownership can sometimes lead to conflict. One co-owner may want to sell while another may want to keep the property. In North Carolina, a partition action (via a “Petition for Partition”) gives co-owners a legal way to divide or force the sale of the property.
What is the Relevant Law?
Petitions for Partition are covered under Chapter 46A of the North Carolina Statutes and there are two ways a Court can order a partition:
1. Partition in Kind
Physical division of jointly owned real estate into separate parcels so that each co-owner receives a portion of the land itself rather than money from a sale. After the division, each co-owner owns their allotted piece outright, free from the others.
2. Partition by Sale:
Court-ordered sale of jointly owned real property. Instead of splitting the land into separate parcels, the court directs that the entire property be sold—usually by private sale completed by a neutral third party called a Commissioner—and then distributes the money to the co-owners in accordance with ownership interests.
Partition by Sale is much more common than Partition in Kind, because often jointly held property can not be readily divided without causing “substantial injury” to the parties, generally through an overall loss in value of the property if it were to be divided instead of sold.
What is the Process?
Petitions to Partition involve the following steps:
- Drafting the Petition for Partition
- Filing the Petition
- Serving all parties
- Having a hearing in front of a Clerk
- Property being either sold or divided
- If applicable, dividing up the proceeds and distributing to the parties
The longest part of the process is usually service, which can take anywhere from a couple of weeks to several months. All parties must be served prior to being able to set a hearing. It can also take a few weeks to get on the Court’s calendar once service is completed. Overall, the process can take anywhere from 6 months to well over a year, depending on the cooperation of all of those involved.
Should I File a Petition for Partition?
Situations where there are disagreements between co-tenants are often what get people talking about Petitions for Partition. With that said, it is often better for all parties to sort things out without relying on the Court. Whether that is through formal mediation or discussions amongst the co-owners, a lot of time and expense can be saved without Court involvement.
If one or more co-owners are unlocatable or otherwise not willing to agree to a sale, then a Petition for Partition may be necessary.
Bottom Line
A Petition for Partition can be a powerful tool when co-owners are truly at an impasse, but it is rarely the fastest, cheapest, or least stressful option. Court involvement almost always increases time, cost, and emotional strain for everyone involved. If you are dealing with jointly owned property and unsure whether a partition action is necessary, or whether there may be a cleaner way to resolve the dispute, it is worth getting advice early. If you’re in need of advice related to Petitions for Partition, call our office today to get guidance from one of our attorneys.
Stott, Hollowell, Windham & Stancil
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