Jan72026
Partition Action Q&A Series

How do I schedule a hearing to get an order for partition by sale when the other owner was served but never responded? – North Carolina

Short Answer

In North Carolina, a partition case is a special proceeding typically handled through the Clerk of Superior Court in the county where the land is located. If the other owner was properly served and the answer deadline has passed with no response, the next step is usually to file a written motion/request asking the Clerk to set (calendar) a hearing and to enter the requested partition-by-sale order. Even without a response, the party asking for a sale still must present evidence supporting a sale rather than a physical split of the land.

Understanding the Problem

In a North Carolina partition action, can a party move the case forward to a hearing for an order of partition by sale when a co-owner was served with the partition petition but did not file a response by the deadline? The practical issue is how the hearing gets placed on the Clerk of Superior Court’s calendar, including how to request multiple possible hearing dates and times before confirming one. The focus is on the step that triggers a hearing setting after service is complete and the response period has expired.

Apply the Law

North Carolina treats partition as a special proceeding, and the procedure is primarily handled through the Clerk of Superior Court in the county where the property sits. A partition sale is not automatic just because the other owner did not respond. The party seeking a sale must still show that an actual, physical division of the property would cause “substantial injury,” and the court must make specific findings to support ordering a sale rather than a partition in kind.

Key Requirements

  • Proper service and expired response period: The record should show valid service on the respondent and that the statutory answer period has run with no answer filed.
  • Proof that a sale is appropriate: The moving party must prove, by the required standard, that physically dividing the tract would cause substantial injury compared to selling the whole property.
  • Correct forum and proper notice of the hearing: The request to calendar a hearing is made in the special proceeding (typically before the Clerk of Superior Court), and the moving party must provide notice of the hearing to the other parties as required by the applicable service/notice rules.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the respondent was served and did not file a response even though the response deadline has passed. That usually allows the moving party to ask the Clerk of Superior Court to proceed and set a hearing, but it does not remove the need to prove the legal basis for a partition by sale under North Carolina law. The hearing request should be supported with evidence and a proposed order that includes the findings required for a sale.

Process & Timing

  1. Who files: The petitioner (or the party seeking the sale). Where: In the partition special proceeding before the Clerk of Superior Court in the county where the land is located. What: A written motion/request to calendar a hearing for an order of partition by sale, typically supported by an affidavit/declaration and a proposed order with findings. When: After the answer period has expired and the file reflects valid service.
  2. How to get multiple possible hearing dates/times: Many counties require contacting the Clerk’s office (or the Trial Court Coordinator/Clerk’s calendar staff, depending on local practice) to obtain available hearing slots. A common approach is to request several options (for example, three to five dates), specify a preference for later-day settings due to travel, and then confirm one date in writing once the attorney and client approve.
  3. Notice and the hearing itself: After a date is selected, the moving party serves a written notice of hearing (and the motion and supporting papers if not already served) on the other parties using the correct service method for the stage of the case. At the hearing, the moving party presents evidence supporting the statutory standard for a sale and submits a proposed order for the Clerk to sign if the standard is met.

Exceptions & Pitfalls

  • Assuming “no response” guarantees a sale: North Carolina requires proof and specific findings to order a partition by sale, even if the other owner does not participate.
  • Service problems: If service was defective or not documented correctly in the file, the Clerk may refuse to proceed or may require re-service before setting or holding the hearing.
  • Local calendaring rules: Hearing-setting procedures vary by county. Some Clerks require a written request first; others require coordinating dates by phone/email before filing a notice of hearing.
  • Insufficient evidence of “substantial injury”: If the motion papers do not address why a physical division would materially harm value or rights (and whether alternatives like owelty would help), the Clerk may deny a sale request or continue the hearing for more evidence.

Conclusion

In North Carolina, a partition case is a special proceeding usually handled through the Clerk of Superior Court in the county where the land is located. If the other owner was properly served and did not respond by the deadline, the next step is typically to file a motion/request to calendar a hearing and to present evidence supporting a partition by sale, including the findings required by statute. The most important next step is to request a hearing setting from the Clerk’s office and then serve a written notice of hearing after a date is confirmed.

Talk to a Partition Action Attorney

If a co-owner was served in a North Carolina partition case but has not responded and the case needs to be set for a partition-by-sale hearing, our firm has experienced attorneys who can help explain the steps, local calendaring practices, 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.

Category: Partition Action Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.