How can heirs postpone foreclosure and sell jointly-owned property through partition action in North Carolina?
1. Detailed Answer
When co-owners inherit real estate in North Carolina, they share legal title. If a secured lender moves to foreclose, heirs must act quickly to protect their interests. A partition action lets co-owners ask the Superior Court to divide or sell the property. However, filing for partition alone does not automatically stop a lender’s foreclosure sale. Instead, heirs should use the following tools under North Carolina law:
a. Filing a Partition Action
Under North Carolina General Statutes Chapter 46 (see G.S. 46-5 to 46-29), any co-owner may file a partition complaint in Superior Court. The complaint names all co-owners and any mortgagees or lienholders. If the court finds that dividing the land in kind is impractical, it orders a public sale. Sale proceeds pay off debts in priority. Any surplus divides among co-owners according to their ownership shares.
b. Seeking an Injunction Against Foreclosure
To postpone a trustee’s sale under a deed of trust, heirs can ask the court to enjoin the sale before it occurs. North Carolina law provides for this remedy:
- G.S. 45-21.26 allows a party with an interest in the property to file a Superior Court action to enjoin the foreclosure sale by posting a bond for the amount owed, plus interest and costs. (Link to G.S. 45-21.26)
- G.S. 45-21.27 authorizes the court to hear the injunction motion under expedited procedures to protect property rights. (Link to G.S. 45-21.27)
c. Exercising the Right of Redemption
If foreclosure proceeds, foreclosure law grants a post-sale redemption period. Under G.S. 45-21.32, anyone with an interest in the property may redeem it within ten days after the sale by paying the full amount bid plus costs. (Link to G.S. 45-21.32)
d. Negotiating with the Lender
Before or after filing for partition, heirs can negotiate loan modification, forbearance, or refinancing. A lender often prefers a cooperative sale in a partition case over a foreclosure sale, which yields lower net proceeds.
2. Key Takeaways
- Partition actions (G.S. 46-5 to 46-29) let co-owners force a sale or division of jointly-owned land.
- Filing for partition does not automatically stop foreclosure.
- Heirs can seek a court injunction under G.S. 45-21.26–27 to halt a pending foreclosure sale by posting bond.
- After a foreclosure sale, heirs may redeem within ten days under G.S. 45-21.32 by paying the sale price plus costs.
- Negotiating a lender workout can preserve more value than a forced sale.
- Work with a probate attorney to coordinate partition, injunctions, and redemption rights.
Contact Pierce Law Group for Help
Facing foreclosure on an inherited property raises complex issues in probate and real estate law. Our attorneys guide heirs through partition actions, injunction motions, and redemption rights. Contact Pierce Law Group today to protect your interests.
Email us at intake@piercelaw.com or call (919) 341-7055.
