Short Answer

In North Carolina, you must show that someone possessed the back house openly, notoriously, exclusively, continuously, and hostilely to the true owner—either for 20 years, or for 7 years with a defective deed or other “color of title.” In a partition case, if anyone disputes title to the back house, the Clerk of Superior Court will transfer that title issue to Superior Court for decision before a commissioner can sell it with the main house.

Understanding the Problem

You want to know whether you can include a back house in a North Carolina partition sale by proving it was acquired by adverse possession. The co-owners plan to file a partition with the Clerk of Superior Court, and a commissioner will oversee the sale. One key fact: the back house has no recorded deed.

Apply the Law

North Carolina recognizes adverse possession either (a) without color of title after 20 years, or (b) with color of title after 7 years. The possessor’s use must be open, notorious, exclusive, continuous, and hostile (meaning without the true owner’s permission). Partition is a special proceeding before the Clerk of Superior Court, but if someone disputes who owns the back house, the Clerk must transfer that title question to Superior Court. Only after title is resolved can a commissioner include the back house in the sale.

Key Requirements

• Open and notorious: Use of the back house was visible and obvious so a true owner could notice.
• Exclusive and continuous: The same person or those in legal privity used it as their own, without sharing possession with others, for the full statutory period.
• Hostile (without permission): Possession was under a claim of right, not by consent or lease.
• Time period: 20 years without color of title, or 7 years with a written instrument that appears to convey the property (even if defective).
• Forum and sequencing: Partition starts before the Clerk; any genuine title dispute (like adverse possession) is decided in Superior Court before sale.

What the Statutes Say

• N.C. Gen. Stat. § 1-40 (Twenty years’ possession) – Title may vest after 20 years of qualifying adverse possession without color of title.
• N.C. Gen. Stat. § 1-38 (Seven years under color of title) – Title may vest after 7 years of qualifying possession when based on color of title.
• N.C. Gen. Stat. § 1-301.2 (Special proceedings; transfer) – The Clerk transfers special proceedings to Superior Court when an issue of title or other triable fact is raised.

Analysis

Apply the Rule to the Facts: Because the back house has no recorded deed, you must prove someone held it openly, exclusively, continuously, and hostilely for the full statutory period. If there is a defective deed or written instrument covering the back house (color of title), the period is 7 years; if not, it is 20 years. If co-owners or family members intermittently used or shared the back house, you will need clear evidence of ouster or a clear repudiation of any shared rights for the adverse clock to run.

Process & Timing

1. Who files: A co-owner (through counsel). Where: Clerk of Superior Court in the county where the property lies. What: File a partition petition and identify the back house as part of the property to be sold, noting the adverse possession claim. When: File once you have assembled supporting proof (see below).
2. If any party disputes title to the back house, the Clerk will transfer that title issue to Superior Court. Prepare for a focused title-clarification phase: submit affidavits from long-time occupants/neighbors, surveys showing boundaries, photos, repair records, utility bills, insurance, and tax records supporting exclusive, open, and continuous use. The Rules of Evidence apply, and the court may allow limited discovery. Timing varies by county.
3. After the court resolves title in your favor, the Clerk appoints a commissioner to market and sell the property. The sale follows judicial sale procedures. From the proceeds, statutory sale commissions, approved attorney fees, and any guardian ad litem fees for minors are paid before distributing the net proceeds according to ownership interests.

Exceptions & Pitfalls

• Cotenant and family use: Use by a family member or cotenant is not “hostile” unless there is clear ouster or a clear, notorious repudiation of shared rights. Expect a higher evidentiary bar.
• Tacking: To combine periods of possession, you need privity (for example, a transfer from one possessor to the next). Keep deeds, wills, or affidavits that show the chain.
• Color of title limits: The 7-year route requires a written instrument that appears to convey the back house area; the claim is generally limited to the boundaries described.
• Proof gaps: Sporadic occupancy, shared keys, or permissive use undercut exclusivity and hostility. Fill gaps with dated photos, utility bills, contractor invoices, and neighbor affidavits.
• Joinder and transfer: Anyone claiming the back house must be joined. A contested title issue will be transferred to Superior Court before sale; plan for that step.
• Minor interests: If minors hold interests, a guardian ad litem will be appointed, and the court will scrutinize the sale and distributions.

Talk to a Partition Action Attorney

If you’re dealing with a partition and need to prove a back house 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.