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Issue  265  Article  417
Published:  9/1/2020

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2020 Real Property Legislation Part 2 - Partition
Chris Burti, Vice President and Senior Legal Counsel

Session Law 2020-23 includes a complete recodification and rewrite of North Carolina's partition statute, it becomes effective October 1, 2020 applies to partition proceedings commenced on or after that date. While many provisions remain the same, many changes are simply clarifications that do not create a substantive change or are simply codification of common law interpretations of the statute and there are several substantive changes. The full text of the amendments follows the discussion some of what we view as the more significant changes.

N.C.G.S. Chapter 46 is recodified as N.C.G.S. Chapter 46A and divided into three Articles:

Article 1. General Provisions
Article 2. Partition of Real Property
Article 3. Partition of Personal Property

Article 2 is divided into three Parts:

Part 1. General Provisions
Part 2. Actual Partition
Part 3. Partition Sale

46A-3 provides for the court to allocate attorneys' fees incurred by any cotenant for the common benefit of all the cotenants pro rata among the cotenants unless doing so would be inequitable. These attorneys' fees do not include attorneys' fees incurred in disputing the method of partition or the division of the proceeds of a partition sale which shall be allocated pro rata by the court among those cotenants determined to be aligned with the cotenant on that issue. The court has discretion to allocate among the parties reasonable attorneys' fees that are not described in this section.

The next major substantive change is N.C.G.S. Section 46A-21(c) which provides that the petitioner is not required to serve or join spouses of cotenants of the real property unless the spouse is also a cotenant. While in cases of actual partition this might arguably be in accord with the holding in Valentine et ux v. North Carolina Granite Corporation, 193 N.C. 578, 137 S.E. 668 (1927), it does not seem to be in accord with the holding in Citizens Bank & Trust Co. v. Watkins et al., 215 N.C. 292, 1 S.E.2d 853 (1939) which states that the spouse "must be heard upon the confirmation of a sale for division and upon an order for the distribution of the proceeds..." We note also that in City of Winston-Salem v. Yarbrough, 17 N.C.App. 340, 451 S.E.2d 358 (N.C. App. 1994) the North Carolina Court of Appeals held that the N.C.G.S. Section 29-30 inchoate elective right had value which had to be accounted for in a condemnation proceeding. This then begs the question of whether this provision of the new partition statute comports with Constitutional due process requirements.

N.C.G.S. Section 46A-27 codifies the common law equitable principles of accounting which is the right to contribution to a cotenant for carrying costs which are the actual costs of preserving the value of and the cotenants' interests in the real property, including property taxes, insurance, repairs, and payments for a loan to acquire the real property. Upon application to the court the cotenant is entitled to for the lesser of the value added to the real property by the cotenant's improvements as of the date of the commencement of the proceeding or the actual costs of the cotenant's improvements.

This section also incorporates the recovery rights for property taxes provided in N.C.G.S. Section 104-363, but limits them to 10 years. Since the N.C.G.S. Chapter 105 are triggered by partition it could be argued the statute of limitations did not begin to run until the filing of the proceeding. While the new Act limits that interpretation, it does provide for statutory interest which largely mitigates the issue.

N.C.G.S. Section 46A-29 adds the authority of the court to order mediation in addition to the exiting right to agree to voluntary mediation.

Part 2 of the Session Law deals with Actual Partition. N.C.G.S. Section 46A-59 authorizes the court to enter an Order for possession executed in accordance with the procedure for executing a writ or order for possession in a summary ejectment proceeding if all of the following apply:

(1) No timely appeal from the order of confirmation of the report of commissioners has been made, or if an appeal has been made, the judge confirmed the report.
(2) The report and confirmation have been duly recorded in the office of the register of deeds.
(3) Ten days' notice has been given by the party applying for the order for possession to each party remaining in possession at the time application is made after the clerk has confirmed the report of the commissioners.

N.C.G.S. Section 46A-83 dealing with the right to petition for revocation of confirmation order limits that right by explicitly providing that the petitioner for revocation shall not prevail under sub-subdivision (a)(2)a. or b. of this section, if the petitioner was mailed proper notice of the sale. N.C.G.S. Section 46A-85 makes it explicit that where the ratable share due to each cotenant has not yet been determined by the court at the time the proceeds are received by the commissioner, the court shall set the matter for hearing on the court's own motion or upon motion of a party or commissioner. N.C.G.S. Section 46A-86 makes more explicit provisions for dealing with proceeds belonging to a party to the proceeding is a minor, an incompetent adult, an imprisoned party who cannot receive the proceeds, or an unknown or unlocatable cotenant.

Article 3 deals with the provisions for Partition of Personal Property and there are no major substantive changes. The full text of the Bill follows.

AN ACT TO MODERNIZE THE STATUTES ON PARTITION OF PROPERTY AND TO MAKE TECHNICAL, CONFORMING, AND MODERNIZING AMENDMENTS TO THE ELECTIVE LIFE ESTATE STATUTE, AS RECOMMENDED BY THE GENERAL STATUTES COMMISSION.
The General Assembly of North Carolina enacts:

PART I. RECODIFY AND MODERNIZE PARTITION OF PROPERTY STATUTES
SECTION 1.(a)
The General Statutes are amended by adding a new Chapter 46A to be entitled "Partition." The new Chapter shall be divided into three Articles, as follows:

(1) "Article 1. General Provisions."
(2) "Article 2. Partition of Real Property."
(3) "Article 3. Partition of Personal Property."

SECTION 1.(b) Article 2 of Chapter 46A of the General Statutes, as created by subsection (a) of this section, shall be divided into three Parts, as follows:

(1) "Part 1. General Provisions."
(2) "Part 2. Actual Partition."
(3) "Part 3. Partition Sale."

SECTION 2.(a) G.S. 46-1 (Partition is a special proceeding) is recodified as G.S. 46A-1 in Article 1 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(b) G.S. 46-2 (Venue in partition) is recodified as G.S. 46A-20 in Part 1 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(c) G.S. 46-2.1 (Summons) is recodified as G.S. 46A-2 in Article 1 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(d) G.S. 46-3 (Petition by cotenant or personal representative of cotenant) is recodified as G.S. 46A-21 in Part 1 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(e) G.S. 46-3.1 (Court's authority to make orders pending final determination of proceeding) is recodified as G.S. 46A-28 in Part 1 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(f) G.S. 46-4 (Surface and minerals in separate owners; partitions distinct) is recodified as G.S. 46A-24 in Part 1 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(g) G.S. 46-5 (Petition by judgment creditor of cotenant; assignment of homestead) is recodified as G.S. 46A-23 in Part 1 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(h) G.S. 46-6 (Unknown or unlocatable parties; summons, notice, and representation) is recodified as G.S. 46A-22 in Part 1 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(i) G.S. 46-7 (Commissioners appointed) is recodified as G.S. 46A-50(a) in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(j) G.S. 46-7.1 (Compensation of commissioners) is recodified as G.S. 46A-50(b) in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(k) G.S. 46-8 (Oath of commissioners) is recodified as G.S. 46A-50(c) in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(l) G.S. 46-9 (Delay or neglect of commissioner penalized) is recodified as G.S. 46A-50(d) in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(m) G.S. 46-10 (Commissioners to meet and make partition; equalizing shares) is recodified as G.S. 46A-51(a) in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(n) G.S. 46-11 (Owelty to bear interest) is recodified as G.S. 46A-51(b) in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(o) G.S. 46-12 (Owelty from infant's share due at majority) is recodified as G.S. 46A-51(c) in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(p) G.S. 46-13 (Partition where shareowners unknown or title disputed; allotment of shares in common) is recodified as G.S. 46A-52 in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(q) G.S. 46-14 (Judgments in partition of remainders binding on parties thereto) is recodified as G.S. 46A-25 in Part 1 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(r) G.S. 46-16 (Partial partition; balance sold or left in common) is recodified as G.S. 46A-26 in Part 1 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(s) G.S. 46-17 (Report of commissioners; contents; filing) is recodified as G.S. 46A-55(a) in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(t) G.S. 46-17.1 (Dedication of streets) is recodified as G.S. 46A-54 in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(u) G.S. 46-18 (Map embodying survey to accompany report) is recodified as G.S. 46A-55(b) in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(v) G.S. 46-19 (Confirmation and impeachment of report) is recodified as G.S. 46A-56 in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(w) G.S. 46-20 (Report and confirmation enrolled and registered; effect; probate) is recodified as G.S. 46A-57 in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(x) G.S. 46-21 (Clerk to docket owelty charges; no release of land and no lien) is recodified as G.S. 46A-58 in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(y) G.S. 46-22 (Sale in lieu of partition) is recodified as G.S. 46A-75 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(z) G.S. 46-22.1 (Mediation) is recodified as G.S. 46A-29 in Part 1 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(aa) G.S. 46-23 (Remainder or reversion sold for partition; outstanding life estate) is recodified as G.S. 46A-79 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(bb) G.S. 46-24 (Life tenant as party; valuation of life estate) is recodified as G.S. 46A-78 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(cc) G.S. 46-25 (Sale of standing timber on partition; valuation of life estate) is recodified as G.S. 46A-80 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(dd) G.S. 46-26 (Sale of mineral interests on partition) is recodified as G.S. 46A-81 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(ee) G.S. 46-27 (Sale of land required for public use on cotenant's petition) is recodified as G.S. 46A-82 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(ff) Subsections (a) and (b) of G.S. 46-28 (Sale procedure) are recodified as subsections (a) and (d), respectively, of G.S. 46A-76 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(gg) Subsection (c) of G.S. 46-28 (Sale procedure) is recodified as G.S. 46A-77 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(hh) Subsections (a), (b), (c), (d), and (e) of G.S. 46-28.1 (Petition for revocation of confirmation order) are recodified as subsections (a), (c), (d), (e), and (f), respectively, of G.S. 46A-83 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.

SECTION 2.(ii) Subsection (d1) of G.S. 46-28.1 (Petition for revocation of confirmation order) is recodified as G.S. 46A-84 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
<>SECTION 2.(jj) confirmation order) is recodified as subsection (a) of G.S. 46A-85 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(kk) G.S. 46-28.2 (When bidder may purchase) is recodified as G.S. 46A-85(b) in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(ll) G.S. 46-30 (Deed to purchaser; effect of deed) is recodified as G.S. 46A-85(c) in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(mm) G.S. 46-31 (Clerk not to appoint self, assistant or deputy to sell real property) is recodified as G.S. 46A-76(c) in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(nn) G.S. 46-33 (Shares in proceeds to cotenants secured) is recodified as G.S. 46A-85(d) in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(oo) G.S. 46-34 (Shares to persons unknown or not sui juris secured) is recodified as G.S. 46A-86 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(pp) G.S. 46-42 (Personal property may be partitioned; commissioners appointed) is recodified as G.S. 46A-100 in Article 3 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(qq) G.S. 46-43 (Report of commissioners) is recodified as G.S. 46A-101(b) in Article 3 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(rr) G.S. 46-43.1 (Confirmation; impeachment) is recodified as G.S. 46A-101(c) in Article 3 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 2.(ss) G.S. 46-44 (Sale of personal property on partition) is recodified as G.S. 46A-102 in Article 3 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
SECTION 3. Chapter 46A of the General Statutes, as created by Section 1 of this act and as amended by Section 2 of this act, reads as rewritten:

"Chapter 46A.
"Partition.

"Article 1.
"General Provisions.

"§ 46A-1. Partition is a special proceeding.
A partition of property under this Chapter is by special proceeding and, except as modified in this Chapter, its procedure is provided in Subchapter XII of Chapter 1 of the General Statutes.
"§ 46A-2. Summons; notice included in petition.

(a) In partition proceedings initiated under this Chapter, the period of time for answering a summons is provided in G.S. 1-394.
(b) The petition shall include written notice 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. 46A-3, the court may order reasonable attorneys' fees to be paid as a part of the costs of the proceeding.

"§ 46A-3. Attorneys' fees.

(a) In proceedings to partition property under this Chapter, the court shall allocate among all the cotenants of the property those reasonable attorneys' fees incurred by any cotenant for the common benefit of all the cotenants, unless a cotenant shows that doing so would be inequitable. The allocation shall be according to each cotenant's interest in the property.
(b) The attorneys' fees described in subsection (a) of this section do not include attorneys' fees incurred in disputing the method of partition or the division of the proceeds of a partition sale. Reasonable attorneys' fees incurred by a cotenant in disputing an issue described in this subsection shall be allocated by the court among those cotenants determined by the court to be aligned with the cotenant on that issue. The allocation shall be according to each aligned cotenant's interest in the property relative to the total interest of all the aligned cotenants in the property.
(c) The court has discretion to allocate among the parties reasonable attorneys' fees that are not described in subsection (a) or (b) of this section.

"Article 2.
"Partition of Real Property.
"Part 1. General Provisions.

"§ 46A-20. Venue in partition.
A proceeding to partition real property shall be commenced in the county where the property is located. If the property, whether consisting of one or more tracts, is located in more than one county, the proceeding may be commenced in any of the counties where any part of the property is located; in this case, the petitioner shall file a notice of lis pendens in each of the other counties.
" § 46A-21. Petition by cotenant or personal representative of cotenant; necessary and proper parties; joinder of spouses.

(a) Any person claiming real property as a tenant in common or joint tenant may petition to partition the property in superior court. The personal representative of a deceased tenant in common or deceased joint tenant may also petition to partition the property as part of a petition to sell the deceased cotenant's interest for the payment of debts and other claims against the deceased cotenant's estate as provided in G.S. 28A-17-3.
(b) The petitioner shall serve and join all tenants in common and joint tenants of the property. The petitioner may serve and join any other person with an interest in the property, any lessee of the property, and any holder of a lien, mortgage, or deed of trust on the property.
(c) The petitioner is not required to serve or join spouses of cotenants of the real property unless the spouse is also a cotenant.

" § 46A-22. Unknown or unlocatable parties; summons, notice, and representation.

(a) If, at the time of or subsequent to the filing of the petition, the petitioner shows by affidavit or otherwise that the petitioner cannot after due diligence ascertain the name or location of a person that the petitioner is required to, or chooses to, serve under G.S. 46A-21(b), the court shall authorize service by publication under G.S. 1A-1, Rule 4. The notice by publication shall include a description of the property that includes the street address, if any, or other common designation for the property, if any, and may include the legal description of the property.
(b) Before or after the notice by publication, the court shall appoint a guardian ad litem under G.S. 1A-1, Rule 17, to represent any unknown or unlocatable person that the petitioner is required to, or chooses to, serve under G.S. 46A-21(b).

" § 46A-23. Petition by judgment creditor of cotenant.

(a) If a judgment debtor has a personal liability on a judgment docketed in the superior court of a county where the judgment debtor owns real property as a tenant in common or joint tenant, the judgment creditor may petition for an actual partition of the property. If the court apportions a share of the property to the judgment debtor, the judgment creditor may seek to execute the judgment against the judgment debtor's share by (i) setting aside the judgment debtor's homestead in the share, as determined according to Article X of the North Carolina Constitution and Article 16 of Chapter 1C of the General Statutes, and (ii) selling the remaining part of the share.
(b) The remedy provided in this section does not deprive a judgment creditor of any other remedy in law or equity to enforce a judgment lien.

" § 46A-24. Surface and minerals oil, gas, or mineral interests in separate owners; partitions distinct.
When title to the oil, gas, or mineral interests in real property has been separated in ownership from the title to the surface of the property, a tenant in common or joint tenant of the oil, gas, or mineral interests may partition the oil, gas, or mineral interests, distinct from the surface, without joining the owner of the surface. Similarly, a tenant in common or joint tenant of the surface of the property may partition the surface, distinct from the oil, gas, or mineral interests, without joining the owner of the oil, gas, or mineral interests. An owner of the oil, gas, or mineral interests is not required to join a partition of the surface of the property, and an owner of the surface of the property is not required to join a partition of the oil, gas, or mineral interests. The rights of either owner shall not be prejudiced by a partition of the other interests.
" § 46A-25. Partition of real property subject to a contingent future interest; requirements.
When real property is subject to a contingent future interest, any judgment partitioning the property is valid and binding upon all persons having an interest in the property, whether or not in being, if all of the following requirements are met:

(1) The following persons are parties:

a. Persons with a present interest or a vested future interest.
b. Persons in being with a contingent future interest and that would have a present interest if the contingency had occurred at the time the proceeding was commenced.
c. Persons not in being with a contingent future interest.

(2) The following parties are represented by a guardian ad litem appointed under
G.S. 1A-1, Rule 17:

a. Unborn individuals.
b. Parties not in being.
c. Parties who are minors or incompetent adults and who do not have a guardian of the estate or general guardian.
d. Unknown or unlocatable parties.

" § 46A-26. Methods of partition.
In a partition proceeding under this Article, the court shall order one of the following methods of partitioning the real property:

(1) Actual partition under Part 2 of this Article.
(2) Partition sale under Part 3 of this Article so long as the requirements of that Part are satisfied.
(3) Actual partition of part of the property and a partition sale of the remaining part.
(4) Partition of part of the property, whether by actual partition or by partition sale, and order that the remaining part continue to be held in cotenancy. The court, however, shall not order a cotenant to continue to hold property in cotenancy over the cotenant's objection.

" § 46A-27. Carrying costs, including property taxes; improvements; right to contribution.

(a) Right to Contribution. A cotenant has a right to contribution from the other cotenants for the cotenant's payment of the real property's carrying costs and for the lesser of the following:

(1) The value added to the real property by the cotenant's improvements as of the date of the commencement of the proceeding.

(2) The actual costs of the cotenant's improvements.

(b) Procedure. In the case of an actual partition, a cotenant may on application assert the cotenant's right to contribution at any time before the commissioners file their report. In the case of a partition sale, a cotenant may on application assert the right at any time during the partition proceeding.

(c) Property Taxes. A cotenant's right to contribution for property taxes under this section is limited to the amount of property taxes paid by the cotenant during the 10 years preceding the filing of the partition petition, plus interest at the legal rate under G.S. 24-1.

(d) Scope. Nothing in this section affects the rights of cotenants outside a real property partition proceeding initiated under this Chapter.

(e) Carrying Costs Defined. For purposes of this section, "carrying costs" means the actual costs of preserving the value of and the cotenants' interests in the real property, including property taxes, homeowner's insurance, repairs, and payments for a loan to acquire the real property.

" § 46A-28. Court's authority to make orders before final determination of proceeding; notice and hearing.

(a) Before final determination of a proceeding to partition real property, on application of any of the parties, the court may make any orders that it finds to be in the best interest of the parties, including, but not limited to, orders relating to possession, payment of secured debt or other liens on the property, occupancy and payment of rents, the appointment of receivers pursuant to G.S. 1-502(6), and access to the property for the purpose of inspecting, surveying, appraising, or selling the property.
(b) A party making a written application under subsection (a) of this section shall serve a copy of the application on all other parties and any other person the court may require. The court shall schedule a hearing on the application, if, within 10 days of being served, a person files a response in opposition to the application or requests a hearing. If no person files a response or requests a hearing within 10 days of being served, the court may decide the application without a hearing.

" § 46A-29. Mediation.

(a) Parties interested in the real property may agree at any time during the proceeding to mediation of a partition. G.S. 7A-38.1 and G.S. 7A-38.3B apply to a mediation under this section.
(b) When a partition sale is requested, the court or the clerk court, on its own motion or a motion of a party, may order mediation before considering whether to order a sale.

Part 2. Actual partition.

" § 46A-50. Commissioners appointed; compensation; oath; delay or neglect.

(a) Appointment. The superior court shall appoint three disinterested commissioners to apportion the real property to be partitioned among the cotenants. If the property to be partitioned is located in more than one county, the court may appoint additional commissioners if necessary from counties where the property is located other than the county where the proceeding is commenced.
(b) Compensation. The clerk of the superior court shall fix the compensation of commissioners for the partition of real property according to G.S. 1-408.
(c) Oath. The commissioners shall be sworn according to Chapter 11 of the General Statutes.
(d) Delay or Neglect. If, after accepting the commission, any of the commissioners unreasonably delays or neglects to perform his or her duties as a commissioner, the court may remove the commissioner and appoint a new commissioner.

" § 46A-51. Commissioners to inspect and partition real property; apportioning shares; charging owelty on shares of disproportionately greater value.

(a) The commissioners together shall inspect the real property and partition it among the cotenants by apportioning it into shares proportionate in value as nearly as possible to the cotenants' interests in the property. To the extent the commissioners find it necessary to make an equitable partition, they may do any of the following:

(1) Apportion the property into shares disproportionate in value to the cotenants' interests in the property and charge owelty on the shares of disproportionately greater value in the amounts of money necessary to redress the disproportion, to be paid to the shares of disproportionately lesser value.

(2) Adjust the shares or any owelty charged on the shares to account for a court order for contribution under G.S. 46A-27 or any other court order.

(b) Interest on Owelty. Owelty shall bear interest at the legal rate under G.S. 24-1 until paid.

(c) Minor's Share. If a share charged with owelty is apportioned to a minor, the money shall not be payable until the minor becomes 18 years old. If the minor has a guardian of the estate or general guardian, however, the guardian shall pay the money when the guardian receives assets belonging to the minor, other than the share, that may be used for that purpose. If the guardian fails to comply with this subsection, the guardian shall be personally liable for any interest that accrued due to the failure.

" § 46A-52. Partition where cotenants unknown or title disputed.

(a) If there are any cotenants whose names are not known or whose title is in dispute, the shares of those cotenants shall be apportioned together as one parcel.
(b) In any partition proceeding, if two or more cotenants appear as respondents claiming the same undivided interest in the real property to be partitioned, or if any part of the undivided interest claimed by the petitioner is disputed by any respondent, it shall not be necessary to decide on their respective claims before the court orders an actual partition or partition sale of the property. The controversy between the contesting parties may be afterwards decided either in the same or an independent proceeding.

" § 46A-53. Apportionment of shares in common.
When requested by two or more cotenants, the commissioners may, by order of the court, apportion their several shares to them in common, as one parcel, so long as the apportionment is not injurious or detrimental to any cotenant.
" § 46A-54. Dedication of streets.
Upon motion of any party or the commissioners, the clerk may authorize the commissioners to propose in their report the dedication of portions of the real property that are necessary as a means of access to any share or that are otherwise advisable for public or private highways, streets, or alleys. The court shall consider the proposal as a part of the report and, if approved by the court, it shall constitute a dedication. Only a dedication approved by a judge of the superior court affects the interest of a minor, an incompetent adult, or another person under a legal disability.
" § 46A-55. Report of commissioners; contents; filing and service; extension; map.

(a) Report. The commissioners shall file a report of their proceedings in the office of the clerk of superior court within 90 days after the last commissioner receives a notice of appointment. The report shall be signed by at least two commissioners and shall describe particularly the real property or parcels of real property apportioned, the share apportioned to each cotenant in severalty, and any owelty charged. The clerk of the superior court may, for good cause shown, extend the time for filing the report for an additional period not exceeding 60 days. At the time of filing, the commissioners shall serve a copy of the report on all the parties.
(b) Map. The commissioners may employ a disinterested professional land surveyor to prepare a map of the real property showing the quantity, courses, and distances of each share. If a map is prepared, the map shall accompany and form a part of the report of the commissioners.

" § 46A-56. Confirmation of report; appeal; motion for relief.

(a) If no exception to the report of the commissioners is filed within 10 days of service of the report on all the parties, the clerk shall confirm the report.
(b) If an exception to the report of commissioners is filed, the clerk shall do one of the following:

(1) Confirm the report.
(2) Recommit the report for correction or further consideration.
(3) Vacate the report and direct the same commissioners to reapportion the real property.

(4) Vacate the report, discharge the commissioners, and appoint new commissioners to view the premises and make a partition of real property and partition it.

(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 shall not adjudge a partition of the land property different from that made by the commissioners.
(d) After confirmation of the report, any party may seek relief from the order of confirmation for mistake, fraud, or collusion by a motion in the proceeding. This relief, however, shall not affect an innocent purchaser for value and without notice.

" § 46A-57. Report and confirmation enrolled and registered; effect.
The report of the commissioners, when confirmed, and the order of confirmation shall be enrolled and certified to the register of deeds and registered in the office of each county where the real property is located. The confirmed report is binding among and between the parties and the parties' heirs and assigns.
" § 46A-58. Clerk to docket owelty.
If the court orders owelty, the clerk shall enter the owelty on the judgment docket in the same manner as judgments are entered on the docket. The clerk shall mark as plaintiffs on the judgment docket persons whose shares are to be paid owelty, and the clerk shall mark as defendants on the judgment docket persons whose shares are charged with owelty. The entry on the docket shall contain the title of the special proceeding in which the property was partitioned. When owelty is paid, the entry upon the judgment docket shall be marked satisfied in the same manner as judgments are cancelled and marked satisfied, and the clerk shall be entitled to the same fees for entering this judgment as the clerk is entitled to for docketing other judgments. The docketing of owelty under this section does not release the property from the owelty. Any judgment docketed under this section is not a lien on any property other than the property charged with owelty.
" § 46A-59. Order for possession.

(a) An order for possession of real property apportioned pursuant to this Part, in favor of the party to which an apportionment has been made and against any party in possession at the time of application therefor, may be issued by the clerk of the superior court if all of the following apply:

(1) No appeal from the order of confirmation of the report of commissioners has been made within the time prescribed under G.S. 1-301.2, or if an appeal has been made, the judge confirmed the report pursuant to G.S. 46A-56(c).
(2) The report and confirmation have been duly recorded in the office of the register of deeds pursuant to G.S. 46A-57.
(3) Ten days' notice has been given by the party applying for the order for possession to each party remaining in possession at the time application is made. The notice shall not be given until the clerk has confirmed the report of the commissioners pursuant to G.S. 46A-56.

(b) An order for possession issued pursuant to this section shall be directed to the sheriff and shall authorize the sheriff to remove all occupants and their personal property from the real property and to put the party to which an apportionment has been made in possession. The order shall be executed in accordance with the procedure for executing a writ or order for possession in a summary ejectment proceeding under G.S. 42-36.2. The party to which an apportionment has been made has the same rights and remedies in connection with the execution of an order for possession and the disposition of personal property following execution as are provided to a landlord under State law, including Chapters 42 and 44A of the General Statutes.

Part 3. Partition sale.

" § 46A-75. Sale in lieu of actual partition.

(a) Subject to G.S. 46A-29(b), the court shall order a sale of the real property described in the petition, or of any part of the property, under this Part only if it finds by a preponderance of the evidence that an actual partition of the property pursuant to Part 2 of this Article cannot be made without substantial injury to any of the parties, after having considered evidence in favor of actual partition and evidence in favor of a sale presented by any of the parties. The party seeking a sale of the property has the burden of proving substantial injury under this section.

(b) In determining whether an actual partition would cause substantial injury to any of the parties, the court shall consider all of 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.

(3) Whether charging owelty under G.S. 46A-51 would eliminate or mitigate any substantial injury to any of the parties caused by an actual partition.

(c) If the court orders a partition sale, the court shall make specific findings of fact and conclusions of law supporting the order.

(d) As provided in G.S. 46A-52, if two or more parties claim the same undivided interest in the property, the court is not required to decide the issue before ordering a partition sale of the property.

" § 46A-76. Sale procedure.

(a)General. The procedure for a partition sale is the same as is provided in Article 29A of Chapter 1 of the General Statutes, except as provided in this Part.

(b) One Commissioner Sufficient. In a partition sale, the court is not required to appoint more than one commissioner.

(c) Persons Not to Be Appointed. The clerk of the superior court shall not appoint the clerk, an assistant clerk, or a deputy clerk to make a sale of the real property.
(d) Additional Requirement; Notice of Public Sale. If the court orders a public sale, the commissioner 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 parties previously served pursuant to G.S. 1A-1, Rule 4(j). An affidavit from the commissioner that copies of the notice of sale were mailed to all parties entitled to notice in accordance with this section satisfies the certification requirement and shall also be deemed prima facie true.

" § 46A-77. Cotenant credit.
Any cotenant entering the high bid or offer at any sale of one hundred percent (100%) of the undivided interests in any parcel of real property shall receive a credit for the undivided interest the cotenant already owns in the real property and shall receive a corresponding reduction in the amount of the total purchase price owed after deducting the costs and fees associated with the sale and allocating the costs and fees associated with the sale in accordance with the orders of the court. The high bid or offer shall be for one hundred percent (100%) of the undivided interests in the parcel of real property sold, and the credit and reduction shall be applied at the time of the closing of the cotenant's purchase of the real property. When two or more cotenants jointly make the high bid or offer at the sale, they may receive at the closing an aggregate credit and reduction in the amount of the total purchase price representing the total of such cotenants' their undivided interests in the real property. Any credits and reductions allowed by this subsection shall be further adjusted to reflect any court-ordered adjustments to the share of the net sale proceeds of each of the cotenants entering the high bid or offer, including, but not limited to, equitable adjustments to the share of the net sales proceeds due to a court finding of the lack of contribution of one or more cotenants to the payment of carrying costs or improvements of the real property under G.S. 46A-27.
" § 46A-78. Partition sale of real property subject to a life estate.
If the real property to be partitioned by sale is subject to a life estate, a life tenant who joins in the proceeding shall receive the value of the life tenant's share calculated according to mortality tables accepted by the court and paid out of the proceeds to the life tenant. The owners of the remainder or reversionary interest have no interest in this payment to the life tenant.
" § 46A-79. Partition sale of remainder or reversionary interest of real property.
The existence of a life estate in real property does not bar a partition sale of the remainder or reversionary interest of the property, and for the purposes of partition, the tenants in common or joint tenants of the remainder or reversionary interest shall be deemed to possess the property as if no life estate existed. The partition shall not, however, interfere with the possession of the life tenant during the existence of the life tenant's estate.
" § 46A-80. Sale of standing timber on partition; timber; valuation of life estate.

(a) When two or more persons own real property with standing timber, as tenants in common, joint tenants, or partners, one or more of the persons may seek a partition sale of the timber, separate from the real property.

(b) If real property with standing timber is subject to a life estate, the life tenant or an owner of the remainder or reversionary interest, whether as a tenant in common, joint tenant, partner, or sole owner, may seek a partition sale of the timber, separate from the real property. The life tenant shall be made a party to the proceeding and is entitled to receive the life tenant's share of the proceeds, to be calculated according to mortality tables accepted by the court.
(c) An order allowing a life tenant to sell standing timber requires a finding that the cutting of the timber is in keeping with good husbandry and that no substantial injury will be done to the remainder or reversionary interest.

" § 46A-81. Sale of oil, gas, or mineral interests.
In a partition of oil, gas, or mineral interests of real property, when the court determines any of the following, the court shall order a sale of the oil, gas, or mineral interests and allocate the proceeds according to the interests of the tenants in common or joint tenants:

(1) It is in the best interest of the cotenants of the oil, gas, or mineral interests to sell the interests.
(2) Actual partition of the oil, gas, or mineral interests would cause injury to some or all of the cotenants of the oil, gas, or mineral interests.

" § 46A-82. Sale of real property required for public purposes on cotenant's petition.
When the real property of tenants in common or joint tenants is required for public purposes, one or more cotenants, or the cotenant's guardian of the estate or general guardian, may file a petition verified by oath in the superior court of the county where the property or any part of the property is located, setting forth in the petition that the property is required for public purposes and that the cotenants' interests would be promoted by a sale of the property. If all necessary
parties are before the court and the court finds the facts alleged in the petition to be true, the court shall order a sale of the property, or as much of it as may be necessary. Attorneys' fees shall be assessed in accordance with G.S. 46A-3. Mediator fees and costs of mediation shall be assessed in accordance with G.S. 7A-38.3B. Other costs and expenses shall be assessed in accordance with G.S. 6-21.
" § 46A-83. Petition for revocation of confirmation order.

(a) Grounds for Revocation. Notwithstanding G.S. 46A-76 or any other provision of law, within 15 days of entry of the order confirming the partition sale of real property, the purchaser or any party to the partition proceeding 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, any of the following:

a. Notice of the partition was not served on the petitioner for revocation as required by Ru G.S. 1A-1, Rule 4.
b. Notice of the sale was not mailed to the petitioner for revocation as required by or G.S. 46A-76(d).
c. 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 during the pendency of a petition under this section. No upset bid shall be permitted after the entry of the confirmation order.

(b) Effect of Notice. A petitioner for revocation shall not prevail under sub-subdivision (a)(2)a. or b. of this section, if the petitioner was mailed notice of the sale in accordance with G.S. 46A-76(d).

(c) Service; Notice of Hearing. The party petitioning for revocation shall deliver a copy of the petition to all parties required to be served under G.S. 1A-1, Rule 5, and shall serve the officer or person designated to make the sale under G.S. 1A-1, Rule 4(j). 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 the sale, and all parties required to be served under G.S. 1A-1, Rule 5.
(d) Petition by Purchaser. 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 all of the following, 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:

(1) A lien remains unsatisfied on the property conveyed.
(2) The purchaser has not agreed in writing to assume the lien.
(3) The lien will not be satisfied out of the proceeds of the sale.
(4) The existence of the lien was not disclosed in the notice of sale of the property.

The order of the court in revoking an order of confirmation under this section shall not be introduced in any other proceeding to establish or deny the existence of a lien.
(e) Petition by Party. 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 the 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.
(f) Resale. If the court revokes its order of confirmation under this section, the court shall order a resale. The procedure for a resale is as provided under G.S. 46A-76.

" § 46A-84. Petition for revocation based on inadequate price.
In the case of a petition brought pursuant to G.S. 46A-83(a)(2)c., 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 determined by the court. Before ruling on the petition brought pursuant to G.S. 46A-83(a)(2)c., 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 the purchaser of any money or security tendered by the purchaser pursuant to the high bid or offer.
" § 46A-85. Order becoming final; appeal; purchase of property.

(a) Order Becoming Final; Appeal. An order confirming the partition sale of real property becomes final 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 sale of real property within 10 days of the order becoming final.

(b) Purchase of Property. After the order of confirmation becomes final, the successful bidder may immediately purchase the property.

(c) Effect of Deed. The deed of the officer or person designated to make such the sale shall convey to the purchaser such title and estate in the property as the cotenants and all other parties to the proceeding had in the property.

(d) Sale Proceeds. Upon receipt of the sale proceeds by either the court or the commissioner, the court shall secure to each cotenant the cotenant's ratable share in severalty of the proceeds of sale. If the ratable share due to each cotenant has not yet been determined by the court, the court shall set the matter for hearing on the court's own motion or upon motion of a party or commissioner.

" § 46A-86. Sale proceeds belonging to certain parties.

(a) Minor; Incompetent Adult. When real property is sold under this Chapter and a party to the proceeding is a minor or an incompetent adult, the court shall take appropriate steps to secure the proceeds for the benefit of the party, including any of the following:

(1) For proceeds up to the allowable amounts in G.S. 7A-111, receive, administer, and disburse the proceeds pursuant to that section.
(2) Order the proceeds disbursed to any of the following:

a. A guardian of the estate or general guardian under Chapter 35A of the General Statutes.
b. An agent under Chapter 32C of the General Statutes.
c. In the case of a minor, a custodian under Chapter 33A of the General Statutes.
d. A custodial trust under Chapter 33B of the General Statutes.
e. A trust under Chapter 36C of the General Statutes.

(b) Certain Other Parties. When a sale is made under this Chapter, the court shall invest or deposit under G.S. 7A-112 and G.S. 7A-112.1 proceeds belonging to the following parties:

(1) A party who is imprisoned, if the proceeds cannot be disbursed to, or at the direction of, the party.
(2) An unknown or unlocatable cotenant.

A party may seek disbursement of these proceeds by filing a motion in the proceeding. If the party shows that the proceeds belong to the party, the court shall order that the proceeds be disbursed to the party.

"Article 3.
"Partition of Personal Property.

" § 46A-100. Personal property may be partitioned.
A tenant in common or joint tenant of personal property may file a petition in superior court to partition the property.
" § 46A-101. Commissioners appointed; filing and service of report; confirmation; motion for relief.

(a) Appointment. If the court determines that the petitioner is entitled to relief, the court shall appoint three disinterested commissioners, who, being first duly sworn, shall proceed within 20 days after notice of their appointment to partition the personal property in shares that are as nearly proportionate in value as possible to the interests of the cotenants.
(b)Report. The commissioners shall file a written report of their proceedings in the court, signed by any two of them, within five days after the actual partition. At the time of filing, the commissioners shall serve a copy of the report on all the parties.
(c) Confirmation. If no party files an exception to the commissioners' report within 10 days of service of the report on all the parties, the court shall confirm the report.
(d) Motion for Relief. After confirmation of the report, any party may seek relief from the order of confirmation for mistake, fraud, or collusion by a motion in the proceeding. This relief, however, shall not affect an innocent purchaser for value and without notice.

" § 46A-102. Partition sale of personal property.

(a) If the court determines that an actual partition of personal property would injure some of the parties and that a partition sale is necessary, the court shall order a sale to be made as provided in Article 29A of Chapter 1 of the General Statutes. In a partition sale, the court is not required to appoint more than one commissioner.
(b) G.S. 46A-86 applies to sale proceeds under this section.

PART V. EFFECTIVE DATE
SECTION 18.
This act becomes effective October 1, 2020. Parts I and II of this act apply to partition proceedings commenced on or after that date.
In the General Assembly read three times and ratified this the 11th day of june, 2020.
s/ Philip E. Berger
President Pro Tempore of the Senate
s/ Tim Moore
Speaker of the House of Representatives
s/ Roy Cooper
Governor
Approved 2:20 p.m. this 19th day of June, 2020


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