Short Answer

In North Carolina, you cannot file a partition unless you are a record co-owner. If you helped fund the purchase but were left off the deed, your path is a civil action in Superior Court to impose an equitable remedy—often a constructive or purchase‑money resulting trust, an equitable lien, or unjust enrichment—recognizing your contribution. If the court grants you an ownership interest, you can then seek partition before the Clerk of Superior Court or be paid out from sale proceeds.

Understanding the Problem

In North Carolina, how can you, as a non‑titled contributor, recover money you put into buying a house now owned only in your ex‑partner’s name? You want relief that either adds you to title, reimburses you through a lien, or compensates you from a sale. Here, one salient fact is that the down payment came from joint proceeds of a prior home you both owned.

Apply the Law

North Carolina law separates two stages: (1) first, establish your equitable rights in the titled owner’s property through a civil claim; (2) second, if an ownership interest is recognized, use partition procedures before the Clerk of Superior Court to divide or sell and account for contributions. Partition requires cotenancy; equitable claims are how non‑titled contributors ask the court to recognize an interest or impose a lien.

Key Requirements

• Equitable trust or lien theory: Show you contributed purchase money or other measurable value toward acquiring the home, that the titled owner accepted the benefit, and that equity requires recognizing your interest (via constructive or purchase‑money resulting trust) or securing repayment (equitable lien).
• Unjust enrichment fallback: Prove a measurable benefit you conferred, the owner knowingly accepted it, and it would be unjust for the owner to retain it without payment.
• Tracing and intent: Be ready to trace your funds (e.g., prior home proceeds) into the down payment or mortgage and address whether the funds were intended as a gift or as an investment.
• Forum and notice: File the equitable claims in Superior Court where the property sits; record a notice of lis pendens so others are on notice of your claim.
• Partition only after interest is recognized: If the court declares you a co‑owner, you may file a partition special proceeding with the Clerk; the court can order sale if physical division is impractical and can award credits for mortgage, taxes, and improvements.

What the Statutes Say

• North Carolina Partition Statutes (Chapter 46A) – Governs partition actions, including sales when division isn’t practical and accounting among co‑owners.
• N.C. Gen. Stat. § 1-116 (Lis pendens) – Lets you file notice of your real‑property claim to protect against transfers while the case is pending.
• N.C. Gen. Stat. § 1-254 (Declaratory judgments) – Authorizes court declarations of parties’ rights and interests in property.

Analysis

Apply the Rule to the Facts: You can file a Superior Court action alleging that your joint sale proceeds funded the down payment and that equity requires either recognizing your ownership (constructive or purchase‑money resulting trust) or securing reimbursement (equitable lien), with unjust enrichment as a backup claim. If the court recognizes a co‑ownership interest, you can then petition the Clerk of Superior Court for partition. In partition, the court can order sale and account for each side’s contributions and necessary expenses.

Process & Timing

1. Who files: You (through counsel). Where: Superior Court in the North Carolina county where the home is located. What: A complaint for constructive/purchase‑money resulting trust, equitable lien, and unjust enrichment; file a notice of lis pendens under § 1‑116. When: Act promptly; civil limitation periods can be as short as three years depending on the claim.
2. Use discovery to obtain the deed, mortgage statements, closing disclosures, and bank records. Courts can compel the titled owner to produce information. Parallel mediation is common; if unresolved, the court decides entitlement to a trust, lien, or restitution.
3. If the court declares a co‑ownership interest, file a partition special proceeding with the Clerk of Superior Court in the county of the property. The Clerk can order division or sale (when division is impractical) and award credits for mortgage, taxes, insurance, and value‑adding improvements, with offsets for exclusive use if warranted. The final outcome is a deed or sale confirmation with an accounting and distribution.

Exceptions & Pitfalls

• Statute of Frauds vs. equity: A lack of a written agreement can be raised as a defense, but equitable trusts and liens may apply where you can trace purchase money and show no intent to gift.
• Tracing problems: Commingling funds without records weakens a resulting‑trust claim. Preserve closing statements and bank records tying your funds to the down payment.
• Gift presumption rebuttal: Expect the titled owner to argue your contribution was a gift; contemporaneous communications and the parties’ conduct help rebut this.
• Partition prerequisites: You cannot partition until you are a record co‑owner. First secure a court order recognizing your interest or a deed placing you on title.
• Accounting credits and offsets: In a later partition, be prepared for credits (mortgage, taxes, necessary repairs) and potential offsets (exclusive occupancy), which affect the final distribution.
• Notice protection: Record a lis pendens so the property cannot be sold free of your claim while the case is pending.

Talk to a Partition Action Attorney

If you’re dealing with a home you helped finance but you’re not on the deed, 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.