How do you serve someone who is avoiding contact, and what are my options if we can’t find them? – North Carolina

Short Answer

In North Carolina, a partition case normally starts with service of process (formal delivery of the summons and petition/complaint) using the methods allowed by Rule 4, such as sheriff service, certified mail, or a designated delivery service. If a co-owner avoids being served or cannot be located after due diligence, the court can allow service by publication (newspaper notice) with required affidavits and timing rules. Partition statutes also require publication of a clerk-signed notice in certain partition proceedings, but that notice does not automatically replace the need to properly serve known owners with a summons.

Understanding the Problem

In a North Carolina partition action, can a co-owner move the case forward when the other co-owner refuses to answer calls, does not respond to messages, and seems to be avoiding being handed court papers? What happens if the co-owner’s current address is unknown, and the co-owner cannot be found to receive formal notice of the case? This question matters because the clerk of superior court (and sometimes the superior court judge) generally cannot decide a partition request until the required notices and service steps have been completed.

Apply the Law

North Carolina uses Rule 4 of the Rules of Civil Procedure to govern how a party is served with the summons and initial pleading in a civil action, and partition proceedings often follow those same service rules. If personal delivery or mail service cannot be completed after “due diligence,” the rules allow service by publication, which has specific content and timing requirements. Partition statutes may also require publication of a clerk-signed notice about the partition petition itself, with an appearance date that is at least 30 days after the first publication.

Key Requirements

Use an authorized service method first: For an individual, Rule 4 generally allows sheriff service, leaving papers at the person’s dwelling with a suitable resident, or service by certified mail/designated delivery service that is delivered to the addressee.
Document “due diligence” before publication: Service by publication is a last resort. The file should show reasonable, practical efforts to locate and serve the person before asking to publish.
Follow the publication rules and deadlines exactly: Publication must run for the required number of weeks, in the right newspaper location, with the required information, plus proof (publisher affidavit) and any required mailing to the last known address.

What the Statutes Say

N.C. Gen. Stat. § 1A-1 (Rule 4, Process) – Sets the main methods for serving an individual and allows service by publication when the person cannot be served with due diligence.
N.C. Gen. Stat. § 43-17.2 (Publication of notice; service of process) – In certain partition petitions, requires clerk-signed notice published weekly for four weeks with an appearance date at least 30 days after the first publication, and also requires summons and petition be served on known interested persons.

Analysis

Apply the Rule to the Facts: Under the facts given, the other co-owner is known (not an “unknown heir”), but is unresponsive and sometimes occupies the property. That typically points to starting with Rule 4 methods that work even when someone refuses to cooperate, such as sheriff service at the residence, or (where appropriate) leaving copies at the dwelling with a suitable resident. If the co-owner’s whereabouts become uncertain (for example, the co-owner no longer lives at the property and no reliable address exists), then the next step is to build a clear record of due diligence before requesting service by publication.

Process & Timing

Who files: The co-owner seeking partition (the petitioner/plaintiff). Where: Typically the Clerk of Superior Court in the county where the land is located (partition is commonly handled as a special proceeding). What: A partition petition/complaint, and a summons issued by the clerk. When: After the summons issues, Rule 4 requires personal or substituted personal service within 60 days of issuance, or the case must be kept alive by timely endorsement or an alias/pluries summons.
First attempts at service (avoidance scenarios): Arrange for the sheriff (or another authorized process server where allowed) to attempt personal delivery at addresses where the co-owner actually lives or is regularly present, including the jointly owned property if it is used as a dwelling. If the co-owner will not answer the door but a suitable resident is present, substituted service at the dwelling may be available; if mail service is used, keep the delivery documentation needed for proof of service.
If the co-owner cannot be found: Prepare a motion/request for service by publication with a detailed affidavit showing due diligence, describing the specific attempts to locate and serve the co-owner and any information about the co-owner’s likely location. Publish the notice for the required period, file the publisher affidavit and the required affidavit(s) about publication and any mailing, and then proceed with the next case steps once service is complete.

Exceptions & Pitfalls

Assuming “publication notice” always replaces service: Some partition statutes require published notice signed by the clerk, but known co-owners still generally must be served with a summons and petition using Rule 4 methods unless publication service is properly authorized and completed.
Weak due diligence record: Courts scrutinize whether reasonable efforts were made before publication. Skipping practical steps (checking last-known addresses, using available public records, trying different times for service attempts, documenting contacts) can lead to delays or challenges to service.
Wrong paper trail for mail service: North Carolina requires proof of delivery (not just mailing) for certain mail-based service methods. Returned mail, unsigned receipts, or delivery to the wrong person can create service fights and slow the case down.
Letting the summons chain lapse: If service is not completed and the plaintiff does not extend the summons or issue an alias/pluries summons on time, the case can be deemed discontinued as to the unserved co-owner, forcing a restart and adding delay.

Conclusion

In North Carolina, a partition case must start with proper service of the summons and petition/complaint using Rule 4 methods, even when a co-owner avoids contact. If the co-owner cannot be served after due diligence, service by publication may be used, but only if the required affidavits, newspaper publication steps, and mailing rules are followed. The key next step is to file the partition pleading and keep the summons “alive” by completing service within 60 days or timely issuing an alias/pluries summons.

Talk to a Partition Action Attorney

If you’re dealing with a co-owner who is unresponsive or hard to locate and you need to start (or keep moving) a North Carolina partition case, 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.