Short Answer

In North Carolina, a tenant in common can ask the Clerk of Superior Court to partition co-owned real estate, which can end in a sale if the property cannot be fairly divided. Here, your mother likely co-owns the condo with the deceased partner’s heirs, not by survivorship. She can often avoid a forced sale by using North Carolina’s heirs property rules to buy out the heirs at an appraised value, and she can claim credits for her mortgage, taxes, and necessary repairs.

Understanding the Problem

North Carolina; your mother (a co-owner) wants to prevent a forced sale; the partner’s children (heirs) are threatening a partition action; trigger: the partner died without a will and the deed says tenants in common. The key question is: can your mother stop a forced sale, and if not, what can she do to keep the condo?

Apply the Law

Under North Carolina law, tenants in common each have a right to seek partition in a special proceeding before the Clerk of Superior Court in the county where the property sits. If the court can divide the property fairly, it will order a division (partition in kind). If not, it may order a sale. When the property qualifies as “heirs property” (because at least one share came to an heir from a relative), the court must use special procedures: an appraisal, a buyout option for non-petitioning co-owners, and a preference for partition in kind unless sale is clearly better. Title to a deceased co-owner’s nonsurvivorship real property vests in the heirs at death. A survivorship right exists only if the deed clearly says so.

Key Requirements

• Confirm title: If the deed says tenants in common and has no survivorship language, the decedent’s share passed to the children at death, not to your mother.
• Right to partition: Any co-owner (including heirs) may file a partition proceeding with the Clerk of Superior Court in the county where the condo is located.
• Heirs property safeguards: If the condo is heirs property, non-petitioning co-owners generally have a statutory right to buy out the petitioners’ shares at an appraised value before any sale.
• Forum and process: The Clerk oversees the special proceeding; complex title or equitable issues can be transferred to Superior Court.
• Accounting/credits: Co-owners can seek credits for taxes, mortgage, insurance, and necessary repairs; offsets for sole occupancy or rental value can also be considered.

What the Statutes Say

• N.C. Gen. Stat. § 41-2 (Joint tenancy; survivorship) – Survivorship in real estate exists only if the deed expressly provides it.
• N.C. Gen. Stat. § 28A-15-2 (Title to real property at death) – A decedent’s nonsurvivorship real property vests in the heirs at death.
• N.C. Gen. Stat. Ch. 46A (Partition of Real Property) – Provides procedures for partition in kind or by sale and special protections for heirs property, including appraisal and buyout.

Analysis

Apply the Rule to the Facts: The deed lists tenants in common and there is no survivorship language, so the partner’s half did not pass to your mother; it vested in the partner’s children at death. As co-owners, the children can seek partition. Because their interest came by intestacy, the condo likely qualifies as heirs property, which triggers an appraisal and gives your mother the opportunity to buy out their shares before any sale. Regardless of outcome, she can seek credits for her down payment, mortgage, taxes, and necessary repairs.

Process & Timing

1. Who files: The partner’s children (or any co-owner). Where: Clerk of Superior Court in the county where the condo is located. What: Special proceeding to partition real property (Chapter 46A). When: No general statute of limitations, but once filed, the court will issue notices with firm response and election deadlines.
2. If the court finds the condo is heirs property, it orders an appraisal and gives non-petitioning owners a buyout window. If a buyout is elected and funded on time, title is adjusted accordingly; if not, the case proceeds to partition in kind (if feasible) or an open-market sale.
3. At the end, the court approves a report allocating title or sale proceeds, with adjustments for each co-owner’s credits (mortgage, taxes, necessary repairs) and any occupancy offsets, and enters a final order.

Exceptions & Pitfalls

• Handwritten survivorship notes do not override a deed; survivorship must be on the recorded instrument.
• All heirs must be named and properly served; missing parties can derail a sale order or require do-overs.
• Open issues about title, alleged promises, or equitable claims (for example, reliance on a survivorship understanding) can move the case to Superior Court and add cost and time.
• Credits require proof; keep records of down payment, mortgage statements, tax bills, insurance, and repair invoices.
• If the decedent’s estate is opened and needs assets to pay debts, a personal representative may seek court authority affecting the property; coordinate your partition strategy with any estate proceeding.

Talk to a Partition Action Attorney

If you’re dealing with a threatened partition over a co-owned North Carolina condo, 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.