Who is responsible for commissioner’s fees and attorney fees in a North Carolina partition action?

Detailed Answer

Commissioner’s Fees

When parties cannot agree on dividing real estate, they may sue for a partition action in North Carolina. The court appoints impartial commissioners to survey the land, value the tracts, and recommend how to split or sell the property. Under North Carolina General Statute § 46-23, commissioners may charge:

• A per diem rate (currently $8.00) for each day spent on the job.
• Mileage at six cents per mile for travel on the usual route.
• Actual out–of–pocket expenses, including clerical, engineering, or other professional services.

Once the commissioners file their report, the clerk reviews and approves their charges. The court then enters an order taxing those fees and expenses as costs of the partition proceeding. Each party pays its share based on its percentage ownership in the property. If Party A owns 60 percent and Party B owns 40 percent, Party A would pay 60 percent of the total commissioners’ fees and expenses, and Party B would pay 40 percent.

Attorney’s Fees

Unlike commissioners’ fees, North Carolina statutes do not automatically award attorney fees in partition actions. Each party generally pays its own lawyer unless the court orders otherwise. However, the court has equitable authority to require one party to cover another party’s legal fees in certain circumstances. Common grounds include:

• Vexatious or bad–faith conduct that forces the other side to incur needless expense.
• Extraordinary complexity requiring unusual amounts of legal work.
• Contractual provisions or prior agreement allocating fees to a particular party.

To seek attorney fees, a party must file a formal motion. The court conducts a hearing, reviews evidence of time and rates, and considers what is fair under the circumstances. If the court grants fees, it taxes them as costs of the action and assigns responsibility pursuant to its order.

Key Points to Remember

• Commissioners’ fees and expenses are approved by the clerk and taxed as costs under G.S. 46-23.
• Parties pay commissioner’s fees in proportion to their ownership shares.
• Attorney fees in partition suits are not automatic—each party normally bears its own legal costs.
• Court may, in its discretion, award reasonable attorney fees upon motion for bad faith or equitable reasons.
• File a timely motion with detailed billing records if you seek to recover attorney fees.

If you face a partition action or wonder who will cover commissioner’s and attorney fees, our team at Pierce Law Group can help. With years of probate and real estate experience, we guide you through each step and fight for fair treatment under North Carolina law. Contact us today to discuss your case:

Phone: (919) 341-7055
Email: intake@piercelaw.com