Can a co-heir who has been living on the inherited property and paying the taxes claim the whole property through adverse possession? – North Carolina

Short Answer

Sometimes, but not just because a co-heir lived there and paid the taxes. In North Carolina, heirs typically own inherited real estate together as cotenants, and one cotenant’s possession is usually treated as possession for everyone unless there is an “ouster” (a clear denial of the other heirs’ rights). If the co-heir can prove an actual ouster (or, in limited situations, a constructive ouster) and then meet the required time period, adverse possession may cut off the other heirs’ interests.

Understanding the Problem

In North Carolina probate situations, a common question is whether one child can end up owning all of a parent’s land simply because that child stayed on the property for years and handled expenses like property taxes. The decision point is whether the co-heir’s occupancy was merely use of shared family property as a cotenant, or whether the co-heir took actions that legally excluded the other heirs (an ouster) and then held the property long enough under North Carolina’s adverse possession rules.

Apply the Law

When a North Carolina parent dies without a will, the heirs generally take title to the real property as of the date of death, even if the deed still shows the deceased parent’s name. That often means the children become cotenants (tenants in common). Under North Carolina law, a cotenant usually cannot claim adverse possession against other cotenants unless the cotenant proves an ouster (actual or, in some cases, constructive) and then satisfies the adverse possession time period. The key forum for disputes over ownership is typically North Carolina Superior Court (often through a civil action such as quiet title and/or partition), and the time period is commonly 20 years unless a valid “color of title” situation applies.

Key Requirements

Cotenant status (shared ownership): If multiple children inherited, each generally has a right to possess and use the whole property, subject to the same right in the other heirs.
Ouster (clear denial of the other heirs’ rights): Possession by one heir is not “adverse” to the others until there is an actual ouster or (in limited circumstances) a constructive ouster proven by clear and convincing evidence.
Enough time after ouster: After ouster, the co-heir must satisfy the applicable adverse possession period (often 20 years; shorter periods can apply in some color-of-title situations, but special cotenant rules can limit that).

What the Statutes Say

N.C. Gen. Stat. § 41-83 (Possession of property held as cotenants) – Each cotenant has a right to occupy and use the property, and one cotenant’s possession is generally treated as possession for the others unless an actual ouster occurs.
N.C. Gen. Stat. § 41-89 (Adverse possession by a cotenant) – A cotenant generally must prove actual ouster (or constructive ouster in certain circumstances) before the possession becomes adverse, and must meet the required time period.
N.C. Gen. Stat. § 1-40 (Twenty years adverse possession) – Describes the 20-year adverse possession rule for real property held adversely under known and visible lines and boundaries.
N.C. Gen. Stat. § 1-38 (Seven years’ possession under color of title) – Describes adverse possession based on color of title for seven years, with additional rules and limits when the dispute is between cotenants.
N.C. Gen. Stat. § 41-80 (Definitions, including actual ouster and constructive ouster) – Defines “actual ouster” and when “constructive ouster” may be presumed after long sole possession.

Analysis

Apply the Rule to the Facts: Here, the parent died intestate a long time ago, the real property is still titled in the parent’s name, and multiple children are heirs. That setup usually means the children became cotenants at death, even if the public record was never updated. A co-heir living on the property and paying taxes is consistent with cotenant use and does not automatically prove ouster. To claim the whole property by adverse possession, the co-heir would need facts showing a clear denial of the other heirs’ rights (or a constructive ouster meeting the statutory criteria) and then enough time running after that ouster.

Process & Timing

Who files: Typically the co-heir claiming sole ownership (or the other heirs disputing it). Where: North Carolina Superior Court in the county where the land is located. What: A civil action to quiet title and/or related claims; in many families, a partition action is also used to force a sale or division when ownership is shared. When: The key timing issue is whether the required adverse possession period (often 20 years) has run after an ouster.
Proof phase: The claimant must prove the elements with evidence (records, witnesses, communications, boundary/possession facts). Between cotenants, North Carolina law requires clear and convincing proof of ouster or constructive ouster.
Outcome document: If the court agrees, it enters an order determining ownership; that order can then be recorded with the Register of Deeds to update the chain of title.

Exceptions & Pitfalls

Paying taxes is not enough: Tax payment can support a possession story, but it usually does not, by itself, prove ouster of other heirs.
“Family permission” defeats adversity: If the occupying co-heir acknowledged the others’ ownership (for example, by saying it is “everyone’s land,” offering to buy shares, or allowing access), that can undermine an adverse possession claim.
Color of title traps between cotenants: A deed that purports to convey “the whole property” from one cotenant often does not create color of title against the other cotenants in the way people expect, and special cotenant rules can prevent a short seven-year path to full ownership.
Delayed probate and title cleanup issues: When the deed remains in the deceased parent’s name, families often need an estate administration step and/or a court proceeding to clarify who the heirs are and what each person owns. For background on clearing ownership where multiple owners have died, see clear ownership of a property when multiple people are on the deed.

Conclusion

In North Carolina, a co-heir who lives on inherited property and pays the taxes usually cannot take the whole property by adverse possession unless the co-heir can prove an ouster (actual or qualifying constructive ouster) and then satisfy the required adverse possession period—most often 20 years after ouster. The practical next step is to evaluate whether an ouster can be proven and, if ownership needs to be clarified, file the appropriate Superior Court action in the county where the property is located before more time and records are lost.

Talk to a Probate Attorney

If multiple heirs inherited North Carolina real estate and one co-heir has been living there and paying the taxes, our firm has experienced attorneys who can help explain whether adverse possession is even possible, what “ouster” means, and what court process may be needed to clear title. 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.