Sep242025
Partition Action Q&A Series

How can I stop occupants who aren’t paying the mortgage or taxes from living rent-free until the sale? – North Carolina

Short Answer

In North Carolina, you have two practical paths to stop rent‑free occupancy now. If an estate is open, the personal representative can ask the Clerk of Superior Court for an order to take possession of the home and eject occupants who are not tenants. If no estate solution is available or you proceed through partition, file a partition action and seek interim relief (such as a receiver or a pay‑into‑court order for use‑and‑occupancy) while the sale moves forward; the court will also adjust shares later for rents received and contributions for the mortgage and taxes.

Understanding the Problem

You are a co-owner in North Carolina asking how you can stop other co-owners from living in the inherited home without paying anything until it sells. The key decision is whether to pursue an estate-based possession order or a partition action with interim relief. One salient fact: a foreclosure sale is already underway and upset bids are pending.

Apply the Law

Under North Carolina law, co-owners generally share equal rights to possess the property, but courts can intervene to prevent unfair, rent‑free use and to protect the asset. If an estate is open, the personal representative may take possession of real property when that is in the best interest of administration and may eject non‑tenant occupants. In a partition proceeding, the court can order a sale and has tools to manage the property during the case, including directing occupants to pay for their use or appointing a receiver to collect and apply rents. At the end, the court accounts for each party’s contributions (mortgage, taxes, insurance) and any rental value or rents received.

Key Requirements

  • Personal representative route: The estate’s personal representative petitions the Clerk of Superior Court for possession of the real property and, if needed, an order ejecting non‑tenant occupants.
  • Partition route: A co-owner files a partition special proceeding in the county where the property sits and asks for a sale (often required for a single small home) plus interim orders to prevent rent‑free use.
  • Interim relief: The court may require occupants to pay reasonable use‑and‑occupancy into court, authorize collection of rents, or appoint a receiver to manage the property pending sale.
  • Final accounting: At or after sale, the court adjusts shares for (a) carrying costs paid (mortgage interest, taxes, insurance) and (b) rent received or reasonable rental value of exclusive use when appropriate.
  • Foreclosure timing: If a power‑of‑sale foreclosure is in upset‑bid status, each new timely upset bid extends the window; coordination is needed so partition or estate relief does not conflict with statutory sale deadlines.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Because co-owners are living in the home without paying the mortgage or taxes, you can push for immediate relief. If an estate is open, have the personal representative seek an order to take possession and eject non‑tenant family occupants; that stops rent‑free use and stabilizes the asset. If the estate route is unavailable or insufficient, file a partition and ask for interim orders requiring occupants to pay reasonable use‑and‑occupancy into court or for a receiver to collect rents, with final credits for whoever actually carried the mortgage and taxes.

Process & Timing

  1. Who files: Estate route: the personal representative. Partition route: any co-owner. Where: Clerk of Superior Court in the North Carolina county where the property is located. What: Estate route: petition for possession/ejectment of occupants; Partition route: petition for partition by sale plus motion for interim relief (pay‑into‑court or receiver). When: As soon as filing and service can be completed; foreclosure upset bids run in 10‑day cycles after each bid.
  2. After filing, the Clerk sets a hearing. In the estate route, if granted, the possession/ejectment order can be enforced promptly. In partition, the Clerk typically orders a sale for a single, non‑divisible home and can enter interim orders to prevent rent‑free occupancy while the sale is arranged.
  3. Sale proceeds are held for distribution. At confirmation and final accounting, the court adjusts shares for (a) mortgage, taxes, and insurance paid and (b) rents received or reasonable rental value of exclusive occupancy, then issues the final order distributing net proceeds.

Exceptions & Pitfalls

  • If occupants are tenants of the decedent, the personal representative must use the landlord‑tenant eviction process; the estate‑ejectment shortcut applies to non‑tenants.
  • Courts rarely remove a co-owner absent an estate possession order or clear evidence of waste; in partition, seek interim pay‑into‑court or a receiver rather than immediate ouster.
  • Serve all co-owners and deeded parties (including the ex‑spouse on title); missing a necessary party can delay or void orders.
  • Local practice varies on receivers and interim use‑and‑occupancy orders; be ready with evidence of unpaid carrying costs and risk to the property.

Conclusion

To stop rent‑free occupancy before the sale in North Carolina, use one of two tracks. If an estate is open, have the personal representative obtain a Clerk’s order to take possession and eject non‑tenant occupants. Otherwise, file a partition action and seek interim relief—requiring occupants to pay reasonable use‑and‑occupancy into court or appointing a receiver—while the property is sold, with final credits for mortgage and tax payments. Next step: file the appropriate petition with the Clerk of Superior Court promptly.

Talk to a Partition Action Attorney

If you’re dealing with co-owners living in an inherited North Carolina home without paying the carrying costs, 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.

Category: Partition Action Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.