How North Carolina Courts Split Attorney Fees When Co-Owners Battle Over a Partition

Detailed Answer

When two or more co-owners cannot agree on what to do with shared real estate, one may file a partition action to force either a physical division (partition in kind) or a court-ordered sale. Because each owner may hire separate counsel, the question becomes: “Who pays the lawyers?”

1. The Statutory Rule

North Carolina’s partition statute gives the judge broad discretion. Under N.C. Gen. Stat. § 46A-84, the court may “equitably apportion all costs and expenses of the proceeding, including reasonable attorneys’ fees, among the parties in proportion to their interests or as justice requires.”

2. Key Factors the Court Weighs

1. Ownership percentages. Fees often track each party’s share of the property. A 75% owner usually shoulders more cost than a 25% owner.
2. Conduct that increases expenses. If one co-owner’s obstruction—for example, refusing to sign listings or ignoring offers—drives up legal work, the judge may charge that owner a larger slice of the bill.
3. Benefit to the common estate. Fees reasonably incurred to protect or enhance the whole property (e.g., stopping waste) may be treated as a common expense payable from sale proceeds before any distributions.
4. Ability to pay. While not explicit in the statute, courts sometimes consider financial hardship when allocating fees.
5. Separate vs. common counsel. When one lawyer represents several aligned co-owners, that attorney’s fees are usually split among those clients, not charged to opponents.

3. How the Money Actually Changes Hands

• Before a sale: The clerk or superior court judge can order each party to advance funds. Failure to pay may result in a judgment against that owner’s eventual sale proceeds.
• From sale proceeds: In a partition by sale, the commissioner deposits the purchase money with the court. The clerk then deducts approved costs—including attorneys’ fees—off the top before splitting the net surplus among owners (§ 46A-96).
• After physical division: If the land is split in kind, the court may enter a money judgment requiring one party to reimburse another for any fee imbalance.

4. Hypothetical Example

Assume siblings Amy (50%), Ben (25%), and Cara (25%) inherit farmland. Amy wants to sell; Ben and Cara refuse reasonable offers, file multiple objections, and demand a jury trial. The judge finds Amy’s attorney’s fees total $12,000 and were necessary to protect the estate. Under § 46A-84, the court could:

• Charge Ben and Cara equally for $8,000 (because their conduct inflated costs), and
• Charge all three in proportion to ownership for the remaining $4,000.

The amounts would be deducted from sale proceeds before anyone receives cash.

5. Appeals Are Possible—but Costly

An owner may appeal a fee order to superior court or the Court of Appeals, but additional costs and possible interest can pile on if the original ruling is affirmed.

Helpful Hints

• Keep communication civil; cooperation lowers everyone’s legal bill.
• Document unreasonable conduct by other owners—emails, texts, missed deadlines—so the court sees who increased costs.
• Ask counsel early whether common representation is possible to spread fees.
• Provide your lawyer with deeds, tax bills, and valuation data up front to avoid expensive discovery.
• Consider mediation; a settlement can include a private agreement on fee sharing the court will likely honor.

Struggling with fee allocation in a partition fight? Our North Carolina attorneys guide clients through every step—from filing to fair cost recovery. Call us today at (919) 341-7055 for a confidential consultation.