Short Answer

Yes. In North Carolina, any co-owner (tenant in common or joint tenant without survivorship) can file a partition case. If the land cannot be fairly divided, the Clerk of Superior Court can order a sale and split the net proceeds. A mortgage arrearage does not block a partition; the lender’s lien is paid from the sale first, and co-owners can ask the court to account for who paid (or failed to pay) the mortgage, taxes, and similar costs.

Understanding the Problem

You want to know if you can force a sale of North Carolina real estate you co-own when the other owner is behind on the mortgage. Your co-owner already filed a partition case asking for a sale or buyout, and you now agree to sell. The property is tenant-occupied but the tenant will leave soon, and there are side disagreements about personal items.

Apply the Law

Under North Carolina law, a partition is a special proceeding before the Clerk of Superior Court in the county where the land is located. A co-owner has a right to partition. The clerk will first consider “in-kind” division (physically dividing the land). If that would cause substantial injury to co-owners, the clerk may order a sale and split the net proceeds. Mortgages and other liens are paid from the sale proceeds in order of priority. The clerk can also handle an accounting among co-owners for carrying costs (like mortgage interest, taxes, insurance) and for rents collected.

Key Requirements

• Co-ownership: You must hold title with the other owner (e.g., tenants in common). One spouse alone cannot partition property held by the entirety.
• Sale vs. division: Sale is ordered if a fair physical split would cause substantial injury to one or more owners; otherwise, division in kind is preferred.
• Forum: File and proceed before the Clerk of Superior Court in the county where the property lies; the clerk may appoint a commissioner to conduct any sale.
• Liens and arrears: Mortgages and liens attach to the proceeds. Arrearages do not stop a sale; they are paid at closing from gross proceeds before distribution.
• Accounting/credits: Either co-owner can seek credits for necessary carrying costs paid (mortgage interest, taxes, insurance) and an accounting for rents and profits.
• Personal property is separate: Disputes over items like a washer, gifted items, or firearms are not part of a real property partition and may require a separate claim.

What the Statutes Say

• North Carolina Gen. Stat. Chapter 46A (Partition) – Governs partition actions, division in kind, partition by sale, and procedures.
• North Carolina Gen. Stat. Chapter 46A, Article 3 (Heirs Property) – Provides special buyout and appraisal procedures when the property qualifies as heirs property.
• North Carolina Gen. Stat. Chapter 1, Article 29A (Judicial Sales) – Sets procedures for court-ordered sales, including advertising, reports, confirmation, and upset bids.

Analysis

Apply the Rule to the Facts: Because your co-owner already filed and you now agree to sell, the clerk can move directly to decide whether sale is proper. A mortgage arrearage does not bar sale; the lender will be paid from the closing first. You can ask for credits if you covered mortgage, taxes, or insurance, and for an accounting for rents the tenant paid. The disputes about the washer, gifted items, and firearms are personal property issues and are not resolved in a real estate partition.

Process & Timing

1. Who files: Any co-owner. Where: Clerk of Superior Court in the county where the land is located. What: Petition for Partition (requesting division in kind or sale) and later, if applicable, a motion for sale and for accounting/credits. When: Respond to any partition summons by the deadline shown; if a sale is ordered, judicial sale timelines and upset-bid windows apply.
2. If sale is ordered, the clerk appoints a commissioner. The commissioner advertises and conducts a judicial sale. After the report of sale, there is a statutory upset-bid period (often 10 days) that can extend the timeline.
3. After the upset-bid period ends and the sale is confirmed, the commissioner pays liens (e.g., mortgage), costs of sale, and fees. The clerk addresses any accounting/credit issues and distributes net proceeds to the co-owners. The commissioner then delivers the deed to the buyer.

Exceptions & Pitfalls

• Heirs property rules: If the property is “heirs property,” a statutory buyout and appraisal process may apply before any sale.
• Title or equity disputes: If a party raises title questions or equitable defenses, the case can be transferred from the clerk to a superior court judge.
• Notice to lienholders: Make sure lienholders are identified and notified so the sale can close and liens can be properly paid from proceeds.
• Accounting proof: Bring documents showing who paid mortgage, taxes, insurance, and who received rents to support credits or reimbursements.
• Personal property: Items like a tenant’s washer, gifted belongings, or firearms are not part of the real estate partition and require separate resolution.
• Foreclosure risk: If the lender starts foreclosure, it can overtake the partition timeline. Monitor the loan status and communicate with the lender if appropriate.

Talk to a Partition Action Attorney

If you’re facing a partition sale and mortgage issues with a co-owner, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at 919-341-7055.

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.