Dec202025
Partition Action Q&A Series

What happens in a partition case if the other owner won’t communicate or can’t be found? – North Carolina

Short Answer

In North Carolina, a partition case can usually still move forward even if the other co-owner will not communicate or cannot be located. The key is proper service: the filing party must first try reasonable methods to find and serve the missing co-owner, and if that fails, the court can allow service by publication and appoint a guardian ad litem to represent the missing person’s interests. If the court ultimately orders a sale, the process includes required notices, and the missing co-owner’s share is handled through the case rather than by private agreement.

Understanding the Problem

In North Carolina, can a co-owner of real property start and complete a partition case when the other co-owner will not respond to calls, texts, letters, or cannot be found at any address? What happens depends on whether the missing co-owner can be legally served with the partition petition and, if not, whether the court can authorize alternative notice and appoint someone to protect the missing co-owner’s interests during the case. The practical issue is getting the case into the correct court process so the property can be divided or sold even without cooperation from the other owner.

Apply the Law

North Carolina partition cases are court proceedings designed to resolve shared ownership when co-owners cannot agree. When a required party cannot be located, North Carolina law allows the case to proceed through (1) a showing of “due diligence” attempts to find and serve that person, (2) service by publication when the person is unknown or unlocatable, and (3) appointment of a guardian ad litem to represent the missing person in the case. Many partition matters are handled as special proceedings before the Clerk of Superior Court in the county where the land is located, and the sale procedure includes notice requirements that are tied to the method of service used earlier in the case.

Key Requirements

  • Proper parties and forum: All co-owners with an interest must be brought into the case, typically through a special proceeding in the county where the property sits (handled through the Office of the Clerk of Superior Court).
  • Due diligence search before alternative service: If the other owner cannot be found, the filing party must be able to show reasonable efforts to locate them (for example, checking last known addresses and other common locating steps) before the court will allow publication.
  • Service by publication and representation: If the court finds the person is unknown or unlocatable after due diligence, it can authorize service by publication and will appoint a guardian ad litem to protect that person’s interests in the partition case.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe a two-owner property where one co-owner wants to pursue a partition sale but cannot reach the other owner, and the co-owners live in different jurisdictions than the property. Under North Carolina practice, the case does not stop just because the other owner is not communicating; instead, the filing party must document due diligence efforts to locate the other owner and then ask the court to allow service by publication if personal service is not possible. The court will also appoint a guardian ad litem so the missing co-owner has representation in the proceeding, which helps the case move forward while still protecting that co-owner’s rights.

Process & Timing

  1. Who files: A co-owner (petitioner). Where: Office of the Clerk of Superior Court in the North Carolina county where the property is located. What: A partition petition naming the co-owners, plus supporting paperwork that shows ownership and addresses. When: There is no single “deadline” to start a partition, but timing often turns on how quickly service can be completed.
  2. Service and “can’t be found” step: If the other owner cannot be personally served, the petitioner typically must submit an affidavit describing the search efforts (due diligence) and request service by publication. The court should appoint a guardian ad litem for the unlocatable co-owner under the partition statute, which adds a procedural step and can add time.
  3. Sale phase if ordered: If the court orders a public sale, the commissioner must provide required sale notice, including mailing the notice of sale to the last known address of parties who were served earlier, and must do so at least 20 days prior to sale. After the sale, the court reviews and confirms the sale and then oversees distribution of proceeds according to each owner’s interest, subject to allowed costs and claims addressed in the case.

Exceptions & Pitfalls

  • Skipping due diligence: Courts generally will not allow publication just because an owner is ignoring messages. The record usually needs concrete search steps (and dates) showing reasonable efforts to locate the person.
  • Wrong address and notice problems: Using an outdated “last known address” without verifying it can cause service fights and delay the case. Keeping a clear paper trail (returned mail, database results, inquiries) helps support the request for publication.
  • Guardian ad litem adds steps: Appointment of a guardian ad litem is not just a formality; it can require additional time for review and participation. Planning for that step helps set realistic expectations for timeline.
  • County-by-county variation: Local rules and scheduling practices can affect how quickly hearings are set and how sales are calendared, even when the same state statutes apply.

Conclusion

In North Carolina, a partition case can still proceed when the other co-owner will not communicate or cannot be found, but the court must have legally valid notice. If the missing owner cannot be located after due diligence, the court can authorize service by publication and will appoint a guardian ad litem to represent that owner’s interests. If a sale is ordered, the commissioner must mail the notice of public sale at least 20 days before the sale. The next step is to file a partition petition with the Clerk of Superior Court in the county where the property is located.

Talk to a Partition Action Attorney

If a co-owner is refusing to cooperate or cannot be located and a court-ordered sale is needed to end shared ownership, experienced attorneys can help set up proper service, request publication and a guardian ad litem when needed, and keep the case moving toward a sale and distribution. 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.