Jul 29 2025
Probate Q&A Series Who is responsible for commissioner’s fees and attorney fees in a North Carolina partition action?

Who is responsible for commissioner’s fees and attorney fees in a North Carolina partition action?

Detailed Answer

Commissioner’s Fees

When parties cannot agree on dividing real estate, they may sue for a partition action in North Carolina. The court appoints impartial commissioners to survey the land, value the tracts, and recommend how to split or sell the property. Under North Carolina General Statute § 46-23, commissioners may charge:

  • A per diem rate (currently $8.00) for each day spent on the job.
  • Mileage at six cents per mile for travel on the usual route.
  • Actual out–of–pocket expenses, including clerical, engineering, or other professional services.

Once the commissioners file their report, the clerk reviews and approves their charges. The court then enters an order taxing those fees and expenses as costs of the partition proceeding. Those costs are generally taxed against the parties according to their respective interests in the property, unless the court orders otherwise. If Party A owns 60 percent and Party B owns 40 percent, Party A would generally pay 60 percent of the total commissioners’ fees and expenses, and Party B would generally pay 40 percent.

Attorney’s Fees

Unlike commissioners’ fees, North Carolina statutes do not automatically award attorney fees in partition actions. Each party generally pays its own lawyer unless a statute, contract, or other recognized basis permits a fee award. However, the court does not have general equitable authority to require one party to cover another party’s legal fees in partition actions merely because it seems fair. Common grounds include:

  • Statutory authorization.
  • Contractual provisions or prior agreement allocating fees to a particular party.
  • Sanctions or other fee-shifting authorized by applicable law for improper conduct.

To seek attorney fees, a party must file a formal motion if required by the applicable basis for fees. The court conducts a hearing, reviews the applicable legal standard and supporting evidence, and, if authorized, may award fees pursuant to its order.

Key Points to Remember

  • Commissioners’ fees and expenses are approved by the clerk and taxed as costs under G.S. 46-23.
  • Commissioner’s fees are generally taxed in proportion to the parties’ ownership interests, unless the court orders otherwise.
  • Attorney fees in partition suits are not automatic—each party normally bears its own legal costs.
  • Courts may award attorney fees only when authorized by statute, contract, or other applicable law.
  • A party seeking attorney fees must comply with the procedural and evidentiary requirements of the applicable basis for recovery.

If you face a partition action or wonder who will cover commissioner’s and attorney fees, our team at Pierce Law Group can help. With years of probate and real estate experience, we guide you through each step and fight for fair treatment under North Carolina law. Contact us today to discuss your case:

Phone: (919) 341-7055
Email: intake@piercelaw.com