Short Answer

In North Carolina, you can claim land by adverse possession if you prove actual, open, continuous, exclusive, and hostile possession for the required time (typically 20 years, or 7 years with color of title). When family members co-own land, a claimant must also prove an “ouster” that clearly excluded the other co-owners. In a partition case, the Clerk of Superior Court cannot decide a disputed title; title questions go to Superior Court before the parcel can be included and divided.

Understanding the Problem

In North Carolina, you are acting under a power of attorney to file a partition so the Clerk of Superior Court can divide inherited family land among co-owners. You want to know whether adverse possession lets you include a parcel that is not in the current deed, where county records and mapping suggest a boundary error and an omitted tract acquired by long possession.

Apply the Law

North Carolina law recognizes adverse possession as a way to acquire title through long, visible, and exclusive use that is adverse to the true owner. The standard period is 20 years without color of title, and 7 years if you have color of title (a written instrument that purports to convey the land). Between co-owners, the law presumes each holds for the others, so a cotenant claiming by adverse possession must prove “ouster” or another clear repudiation of the others’ rights, communicated or obvious from the conduct. In a partition special proceeding, the Clerk manages the division or sale of property, but if anyone disputes who owns a parcel or its boundaries, the Clerk must transfer that title issue to Superior Court for a civil determination before the parcel can be partitioned. The petition should include accurate legal descriptions; when maps and deeds conflict, a survey is often needed. If the land is “heirs property,” additional steps apply, including appraisal, notice, potential cotenant buyout rights, and an open-market sale process if the court orders sale. Out-of-state heirs must be served under North Carolina’s service rules, and a guardian ad litem must be appointed for any minor cotenant before orders affecting that child’s interest are entered.

Key Requirements

• Adverse possession elements: Actual, open, notorious, hostile, exclusive, and continuous possession for 20 years; or 7 years with valid color of title.
• Claims against co-owners: Must show ouster or a clear repudiation of cotenants’ rights, with notice by words or conduct.
• Title must be established: The Clerk cannot decide contested title; disputed ownership or boundary issues go to Superior Court before partition.
• Accurate property description: Include full legal descriptions; a survey is commonly required when GIS and deeds conflict or a parcel was omitted.
• Heirs property safeguards: If the land qualifies, the court follows special procedures (appraisal, buyout opportunity, open-market sale if ordered).
• All interested parties: Name and serve all cotenants and claimants; appoint a guardian ad litem for any minor owner before substantive rulings.

What the Statutes Say

• N.C. Gen. Stat. § 1-40 (20-year limitations in real property) – General 20-year period for actions to recover real property.
• N.C. Gen. Stat. § 1-38 (Seven years under color of title) – Shorter period when possession rests on a written instrument.
• N.C. Gen. Stat. Ch. 46A (Partition, including heirs property) – Governs partition by the Clerk, commissioners, sale, and heirs property procedures.
• N.C. Gen. Stat. § 1-301.2 (Transfer of special proceedings) – Requires transfer to Superior Court when pleadings raise issues of fact or equitable relief (e.g., title disputes).

Analysis

Apply the Rule to the Facts: Here, a GIS map and title search suggest a boundary error and an omitted tract possibly acquired by long possession. To include that tract in the partition, you would first need to prove adverse possession (and ouster if other heirs’ rights were implicated) in Superior Court or through a declaratory/quiet-title action. Because there is a minor heir, the Clerk must appoint a guardian ad litem before any order affecting that child’s share. With multiple out-of-state heirs, you must use proper Rule 4 service. If you proceed now with only the two known parcels, the omitted tract would likely require a separate title action before it can be partitioned later.

Process & Timing

1. Who files: Any cotenant (you, via power of attorney). Where: Clerk of Superior Court in the North Carolina county where the land lies. What: Partition petition with full legal descriptions; serve a Special Proceedings Summons (AOC‑SP‑100) under Rule 4; attach deeds and, if needed, a recent survey. When: Respondents typically have 10 days after service to answer in a special proceeding.
2. If any party disputes ownership or boundaries, the Clerk must transfer that issue to Superior Court for a civil determination (quiet title/declaratory judgment). The court may order a survey and set a schedule; this phase can take several months.
3. After title is resolved, the partition proceeds. For in‑kind division, the Clerk appoints commissioners; for sale, the court follows statutory procedures. If it is heirs property, the court uses the heirs‑property process (appraisal, notice, potential buyout by cotenants, and open‑market sale if ordered). The final outcome is a recorded partition plat and deeds or an order confirming sale and distribution.

Exceptions & Pitfalls

• Adverse possession among family cotenants requires proof of ouster or clear repudiation—mere use or tax payments usually are not enough.
• GIS maps and tax listings are helpful but do not prove title; rely on deeds, surveys, and a court order if disputed.
• Leaving an omitted tract out of the petition means it will not be divided; you may need a separate quiet-title/declaratory action first.
• Improper service on out‑of‑state heirs or failure to include all interested parties can result in delay or an order that does not bind everyone.
• A minor cotenant must have a guardian ad litem; orders entered without one can be vulnerable.

Talk to a Partition Action Attorney

If you’re dealing with a partition and a disputed or omitted parcel you think was acquired by adverse possession, 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.