Understanding the Problem
When two or more people own property as tenants in common, each owns an undivided interest rather than a separately identified room, building, or tract. Disputes can arise when one owner blocks access, occupies the property alone, collects rent, makes repairs, or wants to sell while another owner disagrees.
Apply the Law
Key Requirements
Each cotenant has a right to possession of the property, regardless of the size of that owner’s share. A cotenant may enter, inspect, occupy, and use the property, but must respect the same rights held by the other cotenants. The deed and any valid cotenant agreement should be reviewed because the owners may agree on possession, rent, reimbursement, management, and authority over the property.
- Each cotenant holds a separate, undivided interest and has a right to possession of the property.
- A cotenant may enter and use the property subject to the rights of all other cotenants.
- Third-party rents and profits are shared proportionally according to the owners’ respective interests.
- A cotenant who is actually excluded may seek an order compelling admission into possession.
What the Statutes Say
N.C. Gen. Stat. § 41-81 provides that tenants in common hold separate undivided interests and that each cotenant has a right to possession. N.C. Gen. Stat. § 41-83 gives each cotenant the right to enter, occupy, and use the property subject to the rights of all other cotenants.
Under N.C. Gen. Stat. § 41-85, cotenants share proportionally in rents and profits received from third parties. If one tenant in common receives more than that owner’s share, another cotenant may bring an accounting action to recover the amount due. The owners may modify arrangements concerning possession, rents, reimbursement, and authority by agreement under N.C. Gen. Stat. § 41-87.
Analysis
Process & Timing
If another cotenant denies access, begin by reviewing the deed and any written agreement, documenting the denied entry, and making a written request for access or an accounting. A cotenant claiming actual ouster may bring an action to compel the cotenant in possession to allow access under N.C. Gen. Stat. § 41-88.
If the owners cannot agree on use or management, any person claiming real property as a tenant in common may petition for partition in superior court under N.C. Gen. Stat. § 46A-21. The court may order an actual division, a sale, a combination of division and sale, or partial partition under N.C. Gen. Stat. § 46A-26. A sale generally requires proof that actual partition cannot be made without substantial injury to a party, as provided by N.C. Gen. Stat. § 46A-75.
Exceptions & Pitfalls
A cotenant’s possession does not ordinarily eliminate another cotenant’s possessory rights, but no owner may use the property in a way that wrongfully excludes the others. Although a cotenant may lease that owner’s undivided interest under N.C. Gen. Stat. § 41-90, one cotenant does not automatically have authority to bind the other owners or grant a tenant greater possession rights than the leasing cotenant holds.
A cotenant who pays property taxes, insurance, repairs, acquisition-loan payments, or other carrying costs may seek contribution in a partition proceeding. Under N.C. Gen. Stat. § 46A-27, contribution for improvements is limited to the lesser of the actual cost or the value added, and contribution for property taxes is generally limited to taxes paid during the 10 years before the partition petition.
Conclusion
In North Carolina, a tenant in common generally may enter, inspect, occupy, and use the entire property, but must respect every other cotenant’s equal possessory rights. The key threshold is whether the deed or a cotenant agreement changes those arrangements, or whether someone has actually excluded another owner. If informal requests do not restore access or produce an accounting of third-party rent, document the problem and consult counsel about an access action, accounting, or partition petition in superior court.
Talk to a Probate Attorney
Contact Pierce Law Group for a free case evaluation about access, rental income, reimbursement, or partition by emailing [email protected] or calling (919) 341-7055.
