Can I recover my legal fees or costs from the other owner if they drag out the case? – North Carolina

Short Answer

Usually, each side pays their own lawyer in a North Carolina partition case. However, the Clerk of Superior Court can tax “costs of the proceeding” (filing fees, service, commissioner, appraisal, survey, publication, and sometimes reasonable attorney’s fees) against one party or split them among co‑owners. Fees may also be shifted as sanctions if a party files frivolous papers or needlessly delays the case. Whether any fees are shifted is discretionary and fact‑specific.

Understanding the Problem

North Carolina co‑owners often ask: in a partition sale proceeding before the Clerk of Superior Court, can a cotenant recover legal fees or case costs from another cotenant who prolongs the matter? The focus is narrow: North Carolina; co‑owners; request to shift fees or costs; timing around the partition process and any delay.

Apply the Law

Under North Carolina law, partition is a special proceeding filed with the Clerk of Superior Court in the county where the property is located. The default rule is the American Rule (each party pays their own attorney), but the court can tax “costs” of the proceeding and, in limited circumstances, award reasonable attorney’s fees. Fee shifting is most likely when legal work benefits all owners or when a party’s filings or conduct lack a justiciable basis or are used to cause delay. Respondents generally have 30 days after service to respond, and requests to tax costs and fees are often decided near judgment or sale confirmation.

Key Requirements

• Special proceeding posture: Partition cases start with a verified petition before the Clerk of Superior Court in the property’s county.
• Costs can be apportioned: The clerk may tax filing, service, commissioner, appraisal/survey, publication, mediation, and similar costs against one party or allocate them among cotenants.
• Attorney’s fees are limited: Routine fees are not automatic; fees may be allowed when work benefits the common property or as a sanction for frivolous or improper filings.
• Sanctions for misuse: Fees may be shifted if a party asserts a claim/defense with no justiciable issue or violates the rules governing pleadings and motions.
• Discretion and timing: The clerk or judge decides whether to shift costs/fees, typically at or near final orders (e.g., confirmation of sale or distribution of proceeds).

What the Statutes Say

• N.C. Gen. Stat. § 46A-1 (Partition proceedings) – Partition is a special proceeding, generally before the Clerk of Superior Court.
• N.C. Gen. Stat. § 6-21 (Taxation of costs) – Courts may tax costs in actions and special proceedings; attorney’s fees may be allowed where authorized.
• N.C. Gen. Stat. § 6-21.5 (Frivolous claims/defenses) – Allows an award of reasonable attorney’s fees when a party asserts a claim or defense with no justiciable issue.
• N.C. Gen. Stat. § 1A-1, Rule 11 (Sanctions) – Authorizes sanctions, including fees, for improper pleadings or motions.

Analysis

Apply the Rule to the Facts: Here, cotenants co‑own a North Carolina home and one refuses a buyout, so a partition sale petition is appropriate. The clerk can apportion “costs of the proceeding” (like commissioner and appraisal expenses) and may shift some attorney’s fees if the legal work benefited the common property or if the other owner’s filings were frivolous or used to cause delay. A mere refusal to settle is not enough; proof of needless delay or baseless positions strengthens a fee request.

Process & Timing

1. Who files: A cotenant. Where: Clerk of Superior Court in the county where the property is located. What: Verified petition for partition (requesting sale), plus any motion to tax costs/fees. When: Serve respondents; a respondent typically has about 30 days after service to respond.
2. If the clerk orders sale, a commissioner may be appointed. Appraisal, survey, publication, and sale costs accrue during the process. The clerk may order mediation and allocate mediator fees.
3. At or near sale confirmation or distribution, file and notice a motion to tax costs and, if warranted, a motion for fees citing the applicable authority. The clerk (or a judge if transferred) decides and enters an order allocating costs/fees.

Exceptions & Pitfalls

• Disagreement alone is not misconduct; fees are unlikely without a benefit to all owners or sanctionable behavior.
• Document the benefit to the common property (e.g., work leading to a higher sale price) to support any fee request.
• Fee motions require notice and support (affidavits, billing records). Vague or late requests risk denial.
• Sanctions standards are high; ensure filings have factual and legal support to avoid exposure to fee awards against the filer.
• If the case raises issues requiring transfer to Superior Court, the judge—not the clerk—will decide fee and cost allocations.

Talk to a Partition Action Attorney

If you’re dealing with a contested partition or cost-shifting questions in North Carolina, 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.