Short Answer

Yes. In a North Carolina partition case, you list the co-owner (your principal) as the party and show your role. Style it like: “Principal’s Name, by and through Agent’s Name, attorney-in-fact.” Attach or be ready to present the power of attorney to show your authority. File the special proceeding with the Clerk of Superior Court in the county where the property sits and join all other co-owners as parties.

Understanding the Problem

In North Carolina, a partition case is a special proceeding to divide or sell co-owned real estate. Your question is: if you are an agent under a power of attorney for a co-owner, how should you list yourself when filing the partition petition? Here, one co-owner is an elderly cousin in long-term care, and you act under a power of attorney for that cousin.

Apply the Law

In North Carolina, the “real party in interest” is the co-owner of the land. An attorney-in-fact (agent) files and signs on the principal’s behalf, but the principal is the party. Caption the case with the principal’s name and add “by and through [Agent], attorney-in-fact.” Partition is filed as a special proceeding with the Clerk of Superior Court where the land lies. All cotenants and anyone with a material interest must be joined and served under Rule 4. Respondents typically have 20 days to answer after service. If a party is a minor, incompetent, or unknown, the clerk addresses representation (for example, appointing a guardian ad litem). If you will later sign a deed as agent, the power of attorney should be recorded before recordation of any conveyance.

Key Requirements

• Name the principal as the party: Style as “Principal’s Name, by and through Agent’s Name, attorney-in-fact,” not the agent alone.
• Show authority: Include a statement of authority and attach or present the durable power of attorney; ensure it authorizes real property and litigation actions.
• File in the right forum: Start a special proceeding with the Clerk of Superior Court in the county where the property is located; serve all respondents under Rule 4.
• Join all co-owners and necessary parties: Include all cotenants (including heirs of deceased cotenants); the clerk can order joinder if anyone is missing.
• Representation issues: If any owner is a minor/incompetent/unknown, the clerk addresses representation (e.g., guardian ad litem); a court-appointed guardian of the estate, if any, usually acts instead of an agent.
• Recording for conveyances: If a partition by sale leads to a deed signed by the agent, record the power of attorney in the county land records before recording the deed.

What the Statutes Say

• North Carolina Gen. Stat., Chapter 46A (Partition) – Governs partition as a special proceeding before the clerk, including division and sale procedures.
• N.C. Gen. Stat. § 32C-1-116 (Powers of Attorney: Judicial relief) – Clerk may review an agent’s authority and order accountings or limit/suspend authority in appropriate cases.
• N.C. Gen. Stat. § 1-301.2 (Appeals in special proceedings) – Sets appeal process from orders of the clerk in special proceedings.

Analysis

Apply the Rule to the Facts: Because your elderly cousin is the co-owner, list your cousin as the petitioner and add “by and through [Your Name], attorney-in-fact” to show you are acting under the power of attorney. Join all other co-owners, including any heirs of the family member who died without a will, as respondents so everyone with an interest is before the clerk. If the resisting co-owner disputes the petition, they will have about 20 days after service to answer. Keep your POA ready to show it authorizes real property and litigation actions; record it before any deed is later signed by you as agent.

Process & Timing

1. Who files: Any cotenant (including “Principal, by and through Agent, attorney-in-fact”). Where: Clerk of Superior Court in the county where the land is located. What: Verified special proceeding petition for partition (in kind or by sale), Special Proceeding Summons, and a copy of the power of attorney showing authority. When: No fixed filing deadline; respondents generally have 20 days after service to answer.
2. The clerk reviews jurisdiction and parties, may order joinder, and may appoint a guardian ad litem if needed. A hearing is set to determine whether an in-kind division is feasible; if not, the clerk typically orders a partition sale and appoints commissioners. Timeframes vary by county and case complexity.
3. For a sale, the judicial sale and any upset bid process occur, followed by confirmation and deed. If you will sign the deed as agent, ensure the power of attorney is recorded in the county land records before recording the deed.

Exceptions & Pitfalls

• If a court has appointed a guardian of the estate or general guardian for the principal, that guardian usually acts in the partition, and the agent’s authority may be limited or suspended.
• A power of attorney that lacks real-property or litigation authority can undermine standing. Confirm the POA’s scope before filing.
• Failing to join all heirs of a deceased co-owner can delay or void relief. Investigate title and heirs; use a guardian ad litem when appropriate.
• If you anticipate signing any deed as agent, record the power of attorney in the county where the property is located before recordation of the deed.
• Contribution/credit issues (taxes, insurance, repairs, occupancy) should be pled and reserved for the clerk’s consideration within the partition proceeding.

Talk to a Partition Action Attorney

If you’re dealing with a co-owned property and need to file a partition as an agent under a power of attorney, 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.