Short Answer

In North Carolina, if a signed settlement requires payment by a set date and the co-owner does not pay, they are in breach. The court can enforce the agreement (including ordering payment or deed transfers) or, if the deal provides for it, the partition case resumes and the Clerk of Superior Court moves the property toward in-kind division or a court-ordered sale. Exact steps depend on how the settlement is written and where the case is pending.

Understanding the Problem

In North Carolina, you and a co-owner are in a court-ordered mediation over whether one buys out the other or you proceed with a partition. You now have a settlement structure: each side receives an agreed cash sum within a set timeframe and signs deeds. You want to know what happens if the other co-owner misses the payment deadline.

Apply the Law

Under North Carolina law, mediated settlements must be in writing and signed to be enforceable. Courts and Clerks of Superior Court can approve and enforce such settlements in matters within their jurisdiction. If the paying party defaults, the court may enforce the settlement (including ordering payment or deed execution) or proceed with the underlying partition special proceeding. Partition cases are handled by the Clerk of Superior Court in the county where the land lies. If the property cannot be fairly divided, the Clerk may order a judicial sale using the state’s judicial sale procedures, which include upset-bid periods.

Key Requirements

• Signed settlement with clear deadlines: The agreement must be written, signed, and state when payment is due and when deeds must be exchanged.
• Default terms: The agreement should state what happens if payment is late (for example, automatic return to partition, entry of judgment, or specific performance).
• Proper forum and continuing jurisdiction: Enforcement occurs in the existing case—before the Clerk in a special proceeding or in Superior Court—subject to transfer if equitable relief is required.
• Partition path if default: If the deal fails, the Clerk proceeds with partition—appointing commissioners for in-kind division or, if impracticable, ordering a judicial sale.
• Judicial sale procedures: Any court-ordered sale follows statewide judicial sale rules, including upset-bid periods and sale confirmation before deed delivery.

What the Statutes Say

• North Carolina Gen. Stat. § 7A-38.1 (Mediated Settlement Conferences) – Authorizes and governs mediation in Superior Court civil actions and supports enforcement of signed mediated agreements.
• North Carolina Gen. Stat. § 7A-38.3B (Mediation Before the Clerk) – Allows the Clerk to order mediation in matters within the Clerk’s jurisdiction.
• North Carolina Gen. Stat. Chapter 46A (Partition) – Governs partition of real property, including division in kind and sale when division is not practicable.
• North Carolina Gen. Stat. § 1-339.1 (Judicial Sales) – Establishes procedures for court-ordered real estate sales, including upset bids and confirmation.

Analysis

Apply the Rule to the Facts: Your settlement should be in writing and signed, with a firm payment deadline and deed-exchange terms. If the co-owner misses that deadline, they are in breach per the agreement. If your settlement says “on default, the partition proceeds,” the Clerk can move the case forward. If it calls for enforcement (for example, payment or deed transfer), you can move the court to enter orders compelling performance and, if needed, proceed with partition if payment still does not occur.

Process & Timing

1. Who files: The non-breaching co-owner. Where: In the pending case—before the Clerk of Superior Court (special proceeding) or Superior Court. What: Motion to enforce the signed mediated settlement/consent order or, per the default clause, a request to resume partition. When: Promptly after the missed payment date; closing documents from a successful mediation are typically filed within about 14 days, but local practice varies.
2. If enforcing the settlement: Ask the court to order payment and deed execution. If equitable relief (like specific performance) is needed, the matter may be transferred to a Superior Court judge. If payment still does not occur, seek further remedies or proceed with partition per the agreement.
3. If proceeding with partition: The Clerk schedules the partition hearing, appoints commissioners for in-kind division if feasible, or orders a judicial sale if not. Judicial sales follow statewide procedures and include upset-bid periods before confirmation and deed delivery.

Exceptions & Pitfalls

• No signed writing: An unsigned or vague mediation “summary” is generally not enforceable. Ensure a signed agreement or consent order before leaving mediation.
• Missing default terms: Without a clear default clause, you may need court orders to enforce or clarity on next steps, which can delay resolution.
• Transfer for equitable relief: Requests such as specific performance or deed-substitute relief may require transfer from the Clerk to Superior Court, adding time.
• Notice and parties: In partition, all co-owners and necessary parties must be properly served; missing a necessary party can complicate or undo orders.
• Sale mechanics: Court-ordered sales include upset-bid periods and confirmation; expect timing to vary by county and sale activity.
• Payment logistics: Avoid delivering deeds before funds clear; use escrow and simultaneous exchange to reduce risk.

Talk to a Partition Action Attorney

If you’re dealing with a missed buyout payment or a stalled settlement in a co-owned property dispute, 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.