Short Answer

No. In North Carolina, a partition case is only for co-owners (cotenants). If a non-owner recorded a document that clouds your title, the usual remedy is a quiet title or declaratory judgment action in Superior Court to remove the cloud, and, if applicable, a motion to cancel any lis pendens. The Clerk of Superior Court can handle partition among co-owners, but title disputes and adverse claims by non-owners are tried in Superior Court.

Understanding the Problem

You’re asking whether you can use a North Carolina partition action to clear a cloud on title created by a recorded claim from someone who is not a co-owner. You own the home; a purchase contract with a real estate agent expired; the agent recorded an interest and is now demanding payment to remove it, which is blocking your sale. You want to know if partition can remove that recorded claim.

Apply the Law

In North Carolina, partition is a special proceeding used to divide or sell property among co-owners. It is not the tool to resolve a claim by someone who is not a co-owner. When a non-owner records a document that clouds title (for example, a memorandum of contract after the contract expired), the standard route is a civil action in Superior Court to quiet title and/or for a declaratory judgment establishing that the recorded claim is invalid and should be cancelled. The Clerk of Superior Court presides over partition among cotenants; if a dispute over title arises, the matter is transferred to the Superior Court for trial of title. If a lis pendens was filed, you can seek its cancellation.

Key Requirements

• Partition requires co-ownership: Only cotenants can bring or be subject to partition; a stranger to title cannot be forced out via partition.
• Quiet title/declaratory relief for clouds: Use a Superior Court action to declare the recorded claim invalid and to remove it from the chain of title.
• Forum matters: Partition begins with the Clerk of Superior Court; title disputes and adverse claims are tried in Superior Court.
• Service and notice: You must properly serve the person who recorded the claim; the court’s judgment must be recorded to clear the title.
• Lis pendens issues: If the other side filed a lis pendens, you can move in Superior Court to cancel it so it does not block a sale.

What the Statutes Say

• North Carolina Gen. Stat. Chapter 46A (Partition of Property) – Partition is a process for cotenants; title controversies are handled by the trial court.
• North Carolina Gen. Stat. § 41-10 (Quiet title) – Allows an owner to remove a cloud and determine adverse claims to real property.
• North Carolina Gen. Stat. § 1-253 (Declaratory judgments) – Courts may declare rights and legal relations regarding property and recorded instruments.
• North Carolina Gen. Stat. § 1-118 (Cancellation of lis pendens) – Provides a path to discharge a lis pendens when appropriate.

Analysis

Apply the Rule to the Facts: You are the sole owner; the agent is not a co-owner. Because partition is only available among cotenants, partition will not remove the agent’s recorded claim. The proper step is to file a quiet title and/or declaratory judgment action in Superior Court seeking an order that the expired contract gives no present interest and that the recorded instrument is void and should be cancelled. If the agent filed a lis pendens, ask the Court to cancel it so your sale can proceed.

Process & Timing

1. Who files: Property owner. Where: Superior Court in the North Carolina county where the property is located. What: Civil Summons (AOC-CV-100), Complaint for Quiet Title and/or Declaratory Judgment, and, if needed, a Motion to Cancel Lis Pendens; you may also file a Notice of Lis Pendens for your action. When: File as soon as the cloud appears to prevent delay in a sale.
2. Serve the defendant(s) under Rule 4. After service, seek early relief (e.g., motion to cancel any lis pendens). Courts often set hearings on such motions on a relatively prompt schedule; timelines vary by county.
3. Obtain a judgment declaring no valid interest and ordering cancellation of the recorded instrument. Record a certified copy of the judgment and any cancellation order with the Register of Deeds to clear title.

Exceptions & Pitfalls

• If the recorded document reflects a valid, unexpired option or enforceable contract interest, the court may not cancel it; the outcome turns on the document’s terms and dates.
• Filing the wrong case type (partition instead of quiet title/declaratory) can waste time; start in Superior Court to resolve adverse claims by non-owners.
• Do not rely on unrecorded agreements; the judgment must be recorded to remove the cloud from the chain of title.
• Proper service is critical. Defective service can stall relief and delay your sale.
• If the other party filed a lis pendens, address it specifically—cancellation is a separate step from invalidating the recorded claim itself.

Talk to a Partition Action Attorney

If you’re dealing with a recorded claim that’s blocking your sale, 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.