Short Answer

In North Carolina, if title is in both names without survivorship, the property is owned as tenants in common and the deceased partner’s share passes to their heirs. You generally cannot undo that ownership by showing you paid the mortgage. Instead, you protect yourself in a partition case by demanding an equitable accounting and reimbursement (credits or a lien) for your payments of mortgage principal, taxes, insurance, and value-adding improvements before any sale proceeds are split.

Understanding the Problem

You are a surviving co-owner in North Carolina asking whether you can change a “tenants in common” designation because you paid the mortgage. Your unmarried partner died without a will, and their heirs now claim a half interest and threaten a partition sale. You want to know if you can stop that and, at minimum, get credit for what you paid.

Apply the Law

Under North Carolina law, co-owners without survivorship hold as tenants in common. When one co-owner dies intestate, their interest vests in their heirs at death. A co-tenant can seek a partition through the Clerk of Superior Court. In a partition, the court must account for contributions and may award credits or an equitable lien to the paying co-tenant before dividing proceeds. The main forum is a special proceeding before the Clerk of Superior Court where the property lies; if contested, parts may be transferred to Superior Court. If served with a partition petition, you typically must respond within the time stated in the summons (often 30 days).

Key Requirements

• Ownership status: Title without survivorship creates a tenancy in common; a decedent’s share goes to heirs, not the surviving co-owner.
• Right to partition: Any tenant in common (including heirs) may seek partition; the court may divide in kind or order a sale if division is impractical.
• Equitable accounting: Before splitting value, the court considers each co-tenant’s payments for mortgage principal, taxes, insurance, necessary repairs, and value-adding improvements and may award credits or a lien.
• Forum and procedure: Special proceeding before the Clerk of Superior Court in the county where the property is located; contested issues can be transferred to a judge.
• Response timing: If you are served with a partition petition, you must answer by the deadline on the summons (typically about 30 days).

What the Statutes Say

• North Carolina Gen. Stat. § 41-2 (Joint tenancy; no automatic survivorship) – Survivorship is not implied; without express survivorship, co-owners hold as tenants in common.
• North Carolina Gen. Stat. § 28A-15-2(b) (Title to real property at death) – A decedent’s nonsurvivorship real property vests in heirs or devisees at death.
• North Carolina Gen. Stat. Chapter 46A (Partition of Real Property) – Governs partition proceedings, including sale when fair division is not feasible.

Analysis

Apply the Rule to the Facts: Because your deed lacks survivorship, North Carolina treats the condo as a tenancy in common, and your partner’s share passed to their heirs at death. You likely cannot change legal title based solely on having made the mortgage payments. But in any partition proceeding, you can seek reimbursement through an equitable accounting for your mortgage principal, taxes, insurance, and improvement costs, which reduces what the heirs receive or secures you a lien before any net proceeds are shared.

Process & Timing

1. Who files: You (as co-tenant) can file proactively for partition with equitable accounting, or respond if the heirs file first. Where: Clerk of Superior Court in the North Carolina county where the condo is located. What: Verified petition (or answer) requesting partition and detailed accounting/credits; attach the deed, mortgage info, and proof of payments. When: If served, answer by the date on the summons (often within 30 days of service).
2. The Clerk sets a hearing to determine whether to partition in kind or order a sale. Expect the court to appoint commissioners or move the matter before a judge if disputes arise. Timeframes vary by county and case complexity.
3. If a sale is ordered, the sale follows judicial sale procedures, including upset bid periods. After costs and liens, the court applies credits and then divides any remaining proceeds among co-owners.

Exceptions & Pitfalls

• Paying the mortgage alone does not change legal title; use the partition accounting to seek reimbursement rather than trying to re-title the property.
• Credits generally favor payments that preserve or increase value (principal, taxes, insurance, necessary repairs). Keep records; interest-only payments and voluntary upgrades may receive less favorable treatment.
• If you collected rent or had exclusive use, the court may offset your credits by fair rental value or rents received.
• Open communication with the deceased partner’s personal representative (if one is appointed). While heirs own the share, certain estate issues can affect timing and coordination.

Talk to a Partition Action Attorney

If you’re facing a threatened partition sale and you paid most or all of the carrying costs, 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.