Dec132025
Partition Action Q&A Series

How can I force the sale of a house if I’m on the mortgage but not listed on the deed? – North Carolina

Short Answer

Under North Carolina law, a person generally cannot bring a partition action or force the sale of a house unless that person has an ownership interest in the real estate, such as being a titled owner or cotenant. Being on the mortgage alone usually creates a debt obligation to the lender, not ownership rights in the property. To move toward a sale or get off the loan, the options typically involve (1) proving some form of ownership or equitable interest, (2) negotiating a refinance or payoff with the title holder and lender, or (3) exploring other contract or trust-based claims in court if the facts support them.

Understanding the Problem

The question here is narrow: under North Carolina partition law, can someone who is liable on the mortgage for a house, but is not listed on the deed, force the sale of that house or otherwise use the courts to resolve the situation? The common situation is that one person holds title in their name alone, while another person signed the promissory note and/or deed of trust with the lender but never received record ownership of the land. The concern is whether that non-titled borrower can use a partition action in North Carolina to compel a sale or whether some other legal route is required to remove their name from the mortgage or recoup contributions.

Apply the Law

North Carolina’s partition statutes focus on owners of real property—those who hold title as tenants in common or joint tenants. A partition case is typically filed in Superior Court in the county where the land lies. The key threshold is whether the person seeking partition has a present ownership interest in the land, not just responsibility on the loan. Mortgage and deed of trust statutes, by contrast, deal with the lender’s rights and foreclosure, not co-borrower disputes about ownership.

Key Requirements

  • Ownership as a cotenant or joint tenant: The petitioner must claim the property as a tenant in common or joint tenant. In practice, that almost always means the person is on the deed or can establish a legally recognized ownership interest.
  • Identifiable interest in specific real estate: The interest must be in the real property itself (land and improvements), not just in the loan or mortgage obligation.
  • Proper parties and notice: All other owners must be joined, and lienholders (like the mortgage lender) may be joined so their interests are protected in any sale.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Based on the facts given, the client is on the mortgage but title to the house is solely in another person’s name. Under North Carolina’s partition statute, a person in that position typically lacks standing for a partition action because the statute is limited to those “claiming real property as a tenant in common or joint tenant.” Without a recognized ownership interest in the deed or an equitable ownership theory (such as a resulting or constructive trust) proven in court, the remedy is usually not partition but negotiation or a separate claim about ownership or contributions.

Process & Timing

  1. Who files: A person who claims to be a cotenant or joint tenant of the real property. Where: Superior Court in the North Carolina county where the house is located. What: A verified petition for partition or for partition sale under Chapter 46A, naming all record owners and, if appropriate, the mortgage lender as a party with a lien interest. When: Any time while the petitioner holds an ownership interest; there is no fixed statute of limitations for a simple partition, though related claims (like breach of contract or trust claims) may have deadlines.
  2. The court determines who owns what share and whether the property can be fairly split in kind or must be sold, appoints commissioners if needed, and addresses the mortgage or deed of trust so that the sale recognizes existing liens. Timeframes vary by county and court congestion; a contested matter can take many months or longer.
  3. If the court orders a partition sale, the property is sold (often through a court-supervised sale), the mortgage is paid from the sale proceeds, and any remaining funds are divided among the owners according to their determined shares, with a final order and report closing the case.

Exceptions & Pitfalls

  • If the non-titled mortgage signer can prove an equitable ownership interest—such as that both parties intended joint ownership, or that funds were contributed based on a clear promise of ownership—a court may first need to decide that ownership question before partition is even available.
  • Assuming that being on the mortgage alone creates a right to partition is a common mistake; the loan documents typically create liability to the lender, not co-ownership between private parties.
  • Another pitfall is focusing only on partition when other remedies—like negotiating a refinance or loan assumption, pursuing a contract claim, or seeking a trust remedy—might be more realistic ways to get a name off the mortgage or recover contributions.
  • Failure to join all necessary owners and lienholders can delay or derail a partition case, because the court must protect those interests before ordering a sale.

Conclusion

In North Carolina, a person on the mortgage but not on the deed usually cannot use a partition action to force the sale of the house, because partition is reserved for those who own the real estate as cotenants or joint tenants. To change ownership or reach a sale, that person generally must first establish some ownership interest or rely on negotiation with the title holder and lender, or, where the facts support it, pursue separate claims about agreements or contributions. The most important next step is to have a North Carolina attorney review the deed, loan documents, and history of the transaction to identify any viable ownership or contract-based claims and any applicable deadlines.

Talk to a Partition Action Attorney

If a person is on a North Carolina mortgage but not on the deed and is trying to force a sale or get off the loan, our firm has experienced attorneys who can help explain options under partition and related property laws. 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.

Category: Partition Action Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.