Steps to Obtain a Court-Ordered Survey Paid From Sale Proceeds in a North Carolina Partition Action

Detailed Answer

In a North Carolina partition action, the court may require a current survey to establish metes and bounds, locate improvements, or confirm acreage before an in-kind division or a court-ordered sale. Below is the step-by-step roadmap for asking the court to order—and ultimately pay for—the survey out of the property’s sale proceeds.

1. File the Partition Complaint or Petition.

   Start the action in the clerk of superior court for the county where the land lies. Allegations should include the legal description currently available and a statement that a survey will be necessary to complete the partition.
   Statute: N.C. Gen. Stat. § 46A-21.

2. Move for Appointment of a Partition Commissioner.

   The commissioner administers the process, including contracting with a licensed North Carolina Professional Land Surveyor (PLS).
   Statute: § 46A-6.

3. File a Motion for Survey at the Earliest Stage.

   Cite the need for a survey to determine fair market value or to create new tract descriptions. Request that the court’s order expressly allow the survey fee to be treated as a cost of the proceeding and reimbursed from the eventual sale proceeds.

4. Serve Notice and Obtain Consent—or a Hearing.

   All co-tenants must receive notice of the motion. When they disagree, request a hearing. Present testimony or affidavits from a real-estate agent, appraiser, or surveyor explaining why an accurate survey benefits every owner.

5. Secure an Interlocutory Order Authorizing the Survey.

   The order should:

   • Appoint (or confirm) the commissioner.
   • Authorize the commissioner to hire a specific PLS.
   • Cap or outline reasonable survey costs.
   • Designate the survey fee as a recoverable cost to be first paid from the sale proceeds before distribution to the co-tenants.

   Statute: § 46A-3(b) (taxing costs, including survey expenses).

6. The Commissioner Coordinates and Files the Survey.

   The surveyor performs fieldwork, drafts a plat, and records it if required. The commissioner then files the survey and plat in the civil file and, when applicable, with the register of deeds.

7. Complete the Sale.

   Whether the property sells privately or at public auction, the commissioner or clerk approves the sale, and closing occurs.

8. Pay Survey Costs at Closing.

   Closing counsel treats the survey invoice as a closing cost. Under § 46A-3, these “reasonable expenses” are deducted before calculating each owner’s net share. No party pays out-of-pocket.

9. Final Accounting and Court Approval.

   The commissioner files a final report showing the gross price, the survey fee, other court-approved expenses, and each co-tenant’s net proceeds (§ 46A-28). After any objections are resolved, the clerk enters a final order, closing the case.

Why the Funding Mechanism Works: North Carolina’s partition statute treats survey fees as necessary “costs and expenses of the proceeding.” By embedding payment instructions in the interlocutory order, you ensure the surveyor gets paid at closing, sparing co-tenants the burden of advancing cash.

Helpful Hints

• Ask the surveyor for a written estimate before the hearing; judges like hard numbers.
• Request digital (GIS-ready) files—helpful to real-estate agents and appraisers.
• Confirm the surveyor lists all visible easements, encroachments, and fences; buyers demand clarity.
• Provide the survey to the broker early to speed marketing and avoid price reductions later.
• Keep a copy of the court order at closing. Title companies rely on it to insure reimbursement.

Need guidance on a partition survey or any step of the process? Our North Carolina attorneys routinely handle these cases and can streamline your matter from filing to final distribution. Call us today at (919) 341-7055 for a confidential consultation.