Short Answer

Yes—if the signed mediation agreement is not performed, you can ask the court to enforce it or move forward with a partition case. In North Carolina, partition starts before the Clerk of Superior Court where the land is located. A sale (instead of dividing the land) happens only if the clerk finds that splitting the property in kind would substantially injure the co-owners. Heirs property has extra steps before any sale.

Understanding the Problem

You co-own North Carolina real estate. A court-ordered mediation was set to decide whether one owner would buy out the other or proceed with partition. A new settlement would pay each party a set cash amount by a deadline, with deeds to transfer title, and it says partition moves forward if payment is late. You want to know whether you can force a partition sale if the buy-out isn’t paid on time.

Apply the Law

Under North Carolina law, a mediated settlement binds the parties only if its terms are in writing and signed. If the other owner defaults and the agreement is enforceable, you can seek an order enforcing it or entry of a consent judgment. If it’s not enforceable or is rejected, a co-owner may petition the Clerk of Superior Court for partition in the county where the land sits. The clerk prefers partition in kind unless a sale is necessary to avoid substantial injury to the co-owners. In heirs property cases, the court must follow special procedures, including appraisal and buyout opportunities, before any sale. Judicial sales use North Carolina’s upset-bid process.

Key Requirements

• Enforceable mediated agreement: Settlement terms must be written and signed by the parties to be enforceable; a “mediation summary” form is not binding.
• Enforcement or partition path: On default, seek a motion to enforce or consent order if the agreement is signed; otherwise, file or resume a partition special proceeding with the Clerk of Superior Court.
• Forum and threshold for sale: Partition is filed where the land is located; a sale requires a finding that dividing the property in kind would cause substantial injury to co-owners.
• Heirs property safeguards: If the property qualifies as heirs property, the court must use appraisal and co-tenant buyout steps before ordering a sale.
• Procedural timelines: Respondents generally have 10 days to answer a special proceeding after service; judicial sales are subject to a 10-day upset-bid period.

What the Statutes Say

• N.C. Gen. Stat. § 7A-38.1 (Mediated settlement conferences in superior court) – Requires mediation and recognizes written, signed settlements.
• N.C. Gen. Stat. § 7A-38.3B (Mediation of matters before the clerk) – Allows the clerk to order mediation in special proceedings.
• N.C. Gen. Stat. § 1-301.2 (Special proceedings—transfer/appeal) – Permits transfer to superior court when equitable issues arise.
• N.C. Gen. Stat. § 1-339.36 (Upset bids) – Creates the 10-day upset-bid period for judicial sales.

Analysis

Apply the Rule to the Facts: If the buy-out terms were written and signed at mediation (for example, on AOC-DRC-15 or AOC-DRC-16), you can file a motion to enforce or ask for a consent judgment consistent with the default clause. If the agreement was not signed, it is likely not enforceable, and you can proceed with partition. In the partition proceeding, the Clerk of Superior Court will favor dividing the land unless a sale is needed to avoid substantial injury; if so, the clerk can order a judicial sale with an upset-bid period. If the property is heirs property, expect appraisal and a co-tenant buyout option before any sale.

Process & Timing

1. Who files: Any co-owner. Where: Clerk of Superior Court in the North Carolina county where the property is located. What: Petition for Partition (serve a Special Proceedings Summons, AOC‑SP‑100); to enforce a mediated deal, file a motion to enforce and attach the signed AOC‑DRC‑15/16. When: After the payment deadline passes; respondents generally have 10 days from service to answer in special proceedings.
2. The clerk may order or continue mediation, hold a hearing, and either direct partition in kind (often with commissioners) or find substantial injury and order a judicial sale. If heirs property applies, the court follows appraisal and buyout steps before any sale. Timeframes vary by county.
3. For a sale, the court uses judicial sale procedures with a 10‑day upset‑bid window. After confirmation, a deed is delivered and net proceeds are distributed according to ownership shares, subject to any liens and costs.

Exceptions & Pitfalls

• A “mediation summary” is not binding; only a written, signed settlement is enforceable. If your agreement is unsigned, you’ll need to proceed by partition rather than enforcement.
• If the property is heirs property, the court must follow appraisal and co‑tenant buyout procedures before ordering a sale, which can change timing and outcomes.
• Service defects, missing parties, or failure to appoint a guardian ad litem for minors/unknowns can delay or invalidate orders.
• Raising equitable claims (e.g., constructive trust, accounting) can trigger transfer from the clerk to superior court, adding time and complexity.

Talk to a Partition Action Attorney

If you’re dealing with a failed mediation buy-out and need to enforce a settlement or move forward with partition, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at 919-341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.