Short Answer

In North Carolina partition cases, the Clerk of Superior Court decides who pays costs. Commissioner compensation, appraisal/survey fees, advertising, auctioneer or broker commissions, and other sale expenses are usually taxed as “costs of the proceeding.” In a partition by sale, those costs typically come off the top of the sale proceeds before co-owners are paid. Attorney’s fees may be shifted only when the work benefits all owners or when a statute authorizes it; otherwise each side generally pays their own.

Understanding the Problem

You co-own North Carolina land and are considering a partition to force a sale or division. You want to know who pays the court-appointed commissioner’s fees and the lawyers’ costs if the court orders a sale. The decision point is: if you start a partition in the Clerk of Superior Court, how will the court allocate commissioner compensation and any attorney’s fees connected to the sale of the farm?

Apply the Law

In North Carolina, partition is a special proceeding filed with the Clerk of Superior Court in the county where the land lies. Costs like commissioner compensation, survey/appraisal charges, advertising, auctioneer or broker commissions, and other sale expenses are “costs of the proceeding” the clerk can allocate among the parties. When the land is sold, judicial sale rules apply and sale costs are paid from the proceeds before distribution. Attorney’s fees are not automatically shifted; they may be taxed as costs when the services benefited the common property or when a statute allows it. Heirs property cases add steps (an appraisal and potential buyout) and those added expenses are generally treated as proceeding costs subject to the clerk’s allocation.

Key Requirements

• Proceeding and forum: File a partition as a special proceeding with the Clerk of Superior Court where the land is located.
• Commissioner and sale costs: The clerk fixes reasonable commissioner compensation and taxes sale expenses (appraisal/survey, advertising, auctioneer/broker) as costs; in a sale, they come off the top of the proceeds.
• In-kind vs. sale allocation: In an in-kind division, the clerk typically apportions costs among co-owners (often by ownership percentage) but can adjust for fairness.
• Attorney’s fees: Courts may tax reasonable fees as costs only for work that benefits all co-owners or where a statute authorizes it; otherwise each party pays their own.
• Heirs property add-ons: If treated as heirs property, the court may order an appraisal and offer a buyout; appraisal and related costs are treated as proceeding costs and allocated by the clerk.

What the Statutes Say

• North Carolina Gen. Stat. § 6-21 (Costs and certain attorney’s fees) – Authorizes courts to tax costs and, in specified matters (including partition), to award reasonable attorney’s fees when appropriate.
• North Carolina Gen. Stat. § 1-339.1 (Judicial sales framework) – Establishes procedures for judicial sales; sale expenses are handled through the court’s orders and paid from proceeds.
• North Carolina Gen. Stat. § 1-408.1 (Survey ordered; cost taxed) – Allows the court to order a survey, set a reasonable fee, and tax it as part of the costs.

Analysis

Apply the Rule to the Facts: If you file a partition on the farm, the clerk may appoint a commissioner and, if a sale is ordered, the commissioner’s compensation, sale advertising, and auctioneer or broker commission are costs paid from the sale proceeds before any owner is paid. If the land can be divided in kind, the clerk generally splits commissioner, survey, or appraisal costs among the co-owners, often by their percentage interests, but may adjust based on fairness. Attorney’s fees you incur to advance only your position are usually your responsibility; fees for work that benefits all owners (for example, securing a better sale process) may be taxed as costs.

Process & Timing

1. Who files: Any co-owner. Where: Clerk of Superior Court in the county where the land sits. What: A verified petition for partition (requesting in-kind division or sale; in potential heirs property, request appraisal and buyout steps). When: No fixed filing deadline; costs are typically set and taxed in the clerk’s orders and at sale confirmation.
2. After filing, the clerk determines whether an in‑kind division is feasible; if not, the clerk may appoint a commissioner and order a judicial sale. For heirs property, the court may first order an appraisal and open a short window for buyout elections and payment.
3. On a sale, the court confirms the sale, pays sale and proceeding costs from the proceeds, and then distributes the net to co-owners by their shares.

Exceptions & Pitfalls

• Attorney’s fees are not automatically shifted; fees are taxed as costs only when they benefit all co-owners or are authorized by statute.
• In-kind vs. sale matters: insisting on positions that drive unnecessary surveys or appraisals can lead the clerk to shift those costs to the party who caused them.
• Heirs property has extra steps (appraisal and buyout) with short court-set deadlines; missing them can forfeit buyout rights.
• Failing to join all co-owners or properly serve parties can delay the case and increase costs.

Talk to a Partition Action Attorney

If you’re weighing a partition to sell or divide co‑owned land and want to understand how commissioner, sale, and attorney costs will be handled, our firm has experienced attorneys who can help you understand your options and timelines. Call us today.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.