Short Answer

In North Carolina, a co-owner can file a partition proceeding with the Clerk of Superior Court to divide the property or order a court-supervised sale, with an accounting to sort out who owes or is owed for equity withdrawals, mortgages, taxes, and upkeep. If the home was inherited, the court may apply special heirs-property protections and buyout steps before any sale. Move quickly if foreclosure is looming and make sure the lender and all co-owners are included in the case.

Understanding the Problem

You co-own a North Carolina home with a sibling after a parent’s death. Your sibling appears to have pulled equity from the house and is on the mortgage, but no payments are being made, putting the home at risk of foreclosure. You want to know what you can do—right now—to protect your interest and, if necessary, force a sale and get your share.

Apply the Law

Under North Carolina law, any co-owner may start a partition proceeding in the county where the property sits. The Clerk of Superior Court oversees the case. The clerk decides whether the land can be fairly divided among co-owners or must be sold and the proceeds split. In partition, the court can also adjust the equities among co-owners—crediting or charging parties for mortgage payments, taxes, insurance, repairs, rents, or withdrawals that affected the property’s value. For inherited homes held by relatives as tenants in common, special heirs-property rules may require an appraisal and offer a right for family co-owners to buy out the moving party’s interest before any sale. If an estate is still within its initial administration period, transactions by heirs (like a new mortgage) can be subject to estate rules and may require coordination with a personal representative. The main forum is the Clerk of Superior Court; urgent foreclosure issues may require additional relief from a Superior Court judge.

Key Requirements

• Co-ownership: You hold title as a tenant in common or similar shared interest that allows partition.
• Proper filing and parties: File a partition petition in the county where the land is located and join all co-owners and known lienholders (e.g., mortgage or HELOC lenders).
• Division vs. sale: Show whether in‑kind division is impractical or would cause substantial injury; if so, the court may order a sale and divide net proceeds.
• Heirs property safeguards: If it qualifies as heirs property, expect an appraisal and a buyout opportunity for co-owners before a sale.
• Accounting/credits: Ask the court to account for equity withdrawals, unpaid/paid mortgage, taxes, insurance, necessary repairs, and any exclusive use or waste.
• Estate coordination: If the decedent’s estate is open or recently opened, confirm whether any heir transaction requires personal representative involvement.

What the Statutes Say

• North Carolina Gen. Stat. Chapter 46A (Partition of Real Property) – Procedures for partition, including in‑kind vs. sale and heirs‑property protections.
• North Carolina Gen. Stat. § 28A‑15‑2 (Title to property of decedent) – Title to real property vests in heirs/devisees at death, subject to estate administration.
• North Carolina Gen. Stat. § 28A‑17‑12 (Sales, leases, or mortgages by heirs) – Rules affecting transactions by heirs within the estate’s claims period.

Analysis

Apply the Rule to the Facts: You and your sibling co-own the inherited house, so you can petition for partition in the county where the home sits. Given a suspected cash‑out and no payments, you can ask for a court‑ordered sale and an accounting so the court can credit or charge your sibling for equity pulled, unpaid mortgage, taxes, and insurance. If the home qualifies as heirs property, the court will follow the appraisal and buyout steps before any sale. If the parent’s estate is still in its early window, coordinate with the personal representative to ensure any heir‑initiated mortgage is properly addressed.

Process & Timing

1. Who files: Any co-owner. Where: Clerk of Superior Court (Special Proceedings) in the North Carolina county where the property is located. What: Verified Petition for Partition; serve all co-owners and known lienholders with a Special Proceedings Summons (AOC‑SP‑100); consider recording a notice of lis pendens. When: File promptly—especially if foreclosure is threatened.
2. The clerk determines whether the property is heirs property and whether division in kind is feasible. If not, the clerk may appoint commissioners, order an appraisal (for heirs property), allow a buyout window, or order a sale. Timeframes vary by county; expect weeks to months.
3. After a sale, the court settles liens, costs, and an accounting among co-owners, then enters an order distributing net proceeds. A party may seek further relief in Superior Court if damages or injunctions are needed beyond the clerk’s authority.

Exceptions & Pitfalls

• If your sibling alone signed a later mortgage, it may encumber only that sibling’s undivided interest; lenders still must be notified and may need to be joined to protect everyone’s rights.
• Failing to join all co-owners and known lienholders can delay or undermine the partition order as to those parties.
• Heirs-property cases require extra steps (appraisal and buyout). Skipping these can cause reversals or delays.
• The clerk can handle partition and equitable accounting, but money‑damage claims (e.g., for waste or fraud) belong in Superior Court; consider filing both and seeking consolidation if needed.
• If the estate is open or within early administration windows, coordinate with the personal representative so estate claim rules don’t conflict with property transactions.

Talk to a Partition Action Attorney

If you’re dealing with a co-owner who pulled equity and stopped paying the mortgage on an inherited home, 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.