Detailed Answer

When co-owners of real estate cannot agree on how to use or divide property, one or more co-owners may file a partition action under North Carolina law. In this proceeding, the court either physically divides the land or orders a sale and divides the proceeds. Attorney fees in these cases require court approval before they come out of sale proceeds.

Here is how the process generally unfolds:

1. Initiation and Deposit of Costs: The plaintiff begins by filing a complaint for partition and pays a filing fee. The court clerk may then require all parties to deposit estimated costs, including commissioner’s fees and attorney fees, to ensure funds are available. See N.C. Gen. Stat. § 46-21 (relating to deposit of costs in partition actions).
2. Appointment of Commissioner and Sale: If the court orders a sale, it appoints a commissioner to list and sell the property. The commissioner’s commission typically runs around two percent of the sale price plus advertising or other expenses. These amounts are also treated as costs of the action.
3. Submission of Fee Requests: After the sale, attorneys submit sworn affidavits or detailed statements of their work, including time spent, hourly rates, and tasks performed. Courts require enough detail to assess whether the fees are reasonable and necessary to protect the parties’ interests.
4. Court Review and Approval: Under North Carolina law, attorney fees are part of the “costs” of the action and must be approved by the judge or clerk before distribution. The court weighs factors such as the complexity of the dispute, time invested, customary local rates, and benefits conferred on all parties. This discretion flows from the court’s equitable powers and the general provisions for taxation of costs, including fees paid to counsel. See N.C. Gen. Stat. § 6-21 (allowance of counsel fees as costs).
5. Distribution of Proceeds: Once the court signs an order allowing costs and attorney fees, the clerk issues a final distribution. The clerk pays permitted costs in this priority: clerk’s fees, commissioner’s commission and expenses, and then attorney fees. Any remaining balance goes to the co-owners in proportion to their interests.

At every stage, the court ensures that attorney fees remain reasonable. If a party objects, the judge may hold a hearing to resolve disputes over hours claimed or hourly rates. Parties can protect their rights by filing timely objections.

Key Points to Remember

• Attorney fees in partition actions count as part of “costs” and require court approval before payment.
• The court may require parties to deposit estimated costs, including legal fees, at the start of the case (N.C. Gen. Stat. § 46-21).
• After sale, attorneys submit detailed affidavits. Courts assess reasonableness based on time, effort, complexity, and market rates.
• Courts distribute sale proceeds by paying clerk fees, commissioner costs, then approved attorney fees (N.C. Gen. Stat. § 6-21).
• Parties may object to fee requests. The court may hold a hearing to determine fair compensation.

Contact Pierce Law Group

If you face a partition action or have questions about attorney fees, our team at Pierce Law Group can guide you through every step. Contact us today to protect your interests and ensure a fair outcome.

Email us at intake@piercelaw.com or call (919) 341-7055.