Short Answer

Yes—under North Carolina law, the Clerk of Superior Court (or a judge, if transferred) may tax reasonable attorney fees as costs in a partition case and order them paid from the sale proceeds, usually when the legal work benefits all co-owners (for example, moving the case to sale and closing). If the work primarily advances only one party’s position, fees are often left to that party to pay. Approved sale expenses and taxed costs come off the top before distribution.

Understanding the Problem

In North Carolina partition actions, co-owners ask the Clerk of Superior Court to divide property or sell it and split the money. The key question here is: can the court make attorney fees part of the costs paid from the sale proceeds before anyone gets their share? One important fact: the paying co-owner wants reimbursement for carrying costs they covered while another co-owner lived in the home.

Apply the Law

North Carolina uses a partition special proceeding before the Clerk of Superior Court. The court has discretion to tax “costs,” which can include reasonable attorney fees in special proceedings, and to apportion those costs among the parties. In a sale, allowable sale expenses and taxed costs are paid from proceeds first. Fees are most likely awarded from the common proceeds when the services benefitted the common ownership (e.g., getting the property marketed, sold, and closed) rather than only one party’s adversarial positions. The court will require evidence that the fees are reasonable.

Key Requirements

• Common benefit: Show the legal work materially advanced the partition sale for everyone (not just one side’s dispute).
• Motion and notice: Ask the Clerk to tax attorney fees as costs in the partition case and serve all parties.
• Reasonableness proof: Provide billing detail and support for time, rates, work performed, and local custom.
• Timing: Request fees and reimbursements before the Clerk orders distribution of sale proceeds.
• Court discretion: The Clerk may apportion costs among co-owners or charge them to a specific party for bad-faith conduct.
• Sale expenses first: Advertising, commissioner’s fees, surveys, appraisals, and other sale costs are paid before distribution.

What the Statutes Say

• North Carolina Gen. Stat. Chapter 46A (Partition) – Procedures for partition, including sale and distribution.
• North Carolina Gen. Stat. § 6-21(1) (Costs in special proceedings) – Allows courts to tax costs, including reasonable attorney fees, and apportion them.
• North Carolina Gen. Stat. § 1-339.1 (Judicial sales) – Sets judicial sale procedures, under which sale expenses are paid before distribution.

Analysis

Apply the Rule to the Facts: Because one co-owner paid carrying costs while another lived in the home, North Carolina’s partition process allows the court to adjust equities at sale: reimburse necessary expenses (like taxes, insurance, HOA) and, where appropriate, offset for exclusive occupancy. Attorney fees may be deducted from sale proceeds only if the Clerk taxes them as costs—typically when counsel’s work benefitted all co-owners by moving the case to a sale and distribution, not just advancing one side’s personal claims.

Process & Timing

1. Who files: Any co-owner. Where: Clerk of Superior Court, Special Proceedings, in the North Carolina county where the property sits. What: Petition for partition (request sale if division isn’t practical). Later, file a motion to tax attorney fees as costs and a reimbursement request for carrying costs. When: Ask for fees and reimbursements before the Clerk confirms the sale and orders distribution.
2. Sale is ordered if division in kind is not feasible; a commissioner conducts the judicial sale, advertising and allowing upset bids. The Clerk reviews reports and objections on a set schedule (timeframes vary by county).
3. The Clerk confirms the sale, taxes allowable costs (including any approved attorney fees), applies reimbursements/credits, and enters an order of distribution paying costs from the proceeds before distributing net shares.

Exceptions & Pitfalls

• Attorney fees are not automatic; if the work is largely adversarial or benefits only one party, the court may refuse to charge them to the common proceeds.
• Reimbursement is usually limited to necessary carrying costs; improvements are credited only to the extent they increased market value.
• Exclusive occupancy can trigger an offset for fair rental value that reduces the occupant’s share.
• Insufficient proof sinks requests—bring invoices, proof of payment, and clear billing records to support reasonableness.
• Local practice varies; the Clerk must make findings to support any fee award, and procedures or timelines can change.

Talk to a Partition Action Attorney

If you’re dealing with a partition sale and want fees or carrying costs paid from the proceeds, 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.