Short Answer

In a North Carolina partition case, you ask the Clerk of Superior Court (or the assigned judge) to enter an order requiring the occupying co-owner to vacate by a specific date and granting the court-appointed commissioner possession to ready and market the property. If the co-owner refuses, the court can enforce the order by civil contempt and, if needed, authorize the sheriff to assist. After a judicial sale, a purchaser may also obtain an order for possession under judicial sale procedures.

Understanding the Problem

In North Carolina, how do I, as a co-owner in a court-ordered partition, make the other co-owner move out before the home is listed for sale? Here, a court-appointed commissioner is preparing the home for sale, and one co-owner must vacate before listing. The issue is what court order you need—and how it is enforced—so the commissioner can access, clean, and market the property.

Apply the Law

In a partition special proceeding, the Clerk of Superior Court oversees the process and appoints a commissioner to manage the property and conduct the sale. The court may enter orders necessary to preserve and market the property, including granting the commissioner possession and requiring an occupying co-owner to vacate by a date certain. The request is made by motion in the partition file, noticed for hearing, and served on the occupying co-owner. Orders should specify a clear deadline and access terms; noncompliance can be enforced through civil contempt. After a confirmed judicial sale, the purchaser may obtain an order for possession under judicial sale rules.

Key Requirements

• Necessity: Show that vacancy is reasonably needed for inspection, repairs, showings, or safety so the commissioner can market the property.
• Proper request: The commissioner or any party files a motion in the partition case asking the court to grant possession to the commissioner and to order the co-owner to vacate.
• Notice and hearing: Serve the occupying co-owner and set a hearing; comply with service and any servicemember protections before the court rules.
• Specific terms: The order should set a firm move-out date, access arrangements, key delivery, and authority to change locks after the deadline.
• Enforcement: If the co-owner refuses, seek a show cause order for civil contempt; the court can compel compliance and may authorize sheriff assistance. After a sale is confirmed, possession can also be ordered for the purchaser under judicial sale procedures.

What the Statutes Say

• North Carolina Gen. Stat., Chapter 46A (Partition) – Provides the partition framework, including appointment and powers of a commissioner and court oversight.
• North Carolina Gen. Stat. § 1-339.1 (Judicial Sales – Article 29A) – Judicial sale procedures apply to court-ordered sales, including post-sale possession for purchasers.
• North Carolina Gen. Stat. § 5A-21 (Civil contempt) – Allows the court to compel compliance with its orders.
• North Carolina Gen. Stat. § 5A-23 (Civil contempt procedure) – Sets notice and hearing procedures before holding someone in civil contempt.

Analysis

Apply the Rule to the Facts: Because a commissioner has been appointed and the home must be listed, the court can order the occupying co-owner to vacate if vacancy is reasonably necessary to prepare and market the property. The commissioner or a party should move for possession and a vacate deadline. If the co-owner fails to comply after notice and order, the court can enforce by civil contempt. After the sale is confirmed, if anyone still refuses to leave, judicial sale procedures allow a possession order for the purchaser.

Process & Timing

1. Who files: The commissioner (or a co-owner) by motion. Where: Clerk of Superior Court in the county where the property is located. What: Motion for possession and order to vacate with a proposed order; attach facts showing necessity; serve parties under the civil rules. When: As soon as it becomes clear vacancy is needed for listing; the court will set a hearing date after proper notice.
2. At the hearing, present why vacancy is necessary and the proposed timeline. Ask the court to include a firm vacate date, key delivery, access rights, and authority for the commissioner to secure the property after the deadline.
3. If the order is violated, file a motion for order to show cause re: civil contempt. If noncompliance continues, the court may compel compliance and may authorize sheriff assistance. After sale confirmation, if someone remains, the purchaser may request an order for possession under judicial sale procedures.

Exceptions & Pitfalls

• Do not use self-help. Changing locks or removing belongings without a court order can create liability. Get a clear order first.
• Service and notice matter. Improper service or inadequate notice can delay relief or undermine enforcement. Follow the civil rules and any servicemember protections.
• Be precise in the order. Include the vacate date, key turnover, access for the commissioner and vendors, and authority to secure the property after the deadline to support contempt if needed.
• Tenants versus co-owners. If a non-owner tenant is in lawful possession, different summary ejectment procedures may apply; address occupancy status in your motion.
• Post-sale possession is different. Before listing, seek possession for the commissioner; after sale, possession for the purchaser proceeds under judicial sale rules.

Talk to a Partition Action Attorney

If you’re dealing with a co-owner who will not vacate before a court-ordered 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.