Short Answer

No. In North Carolina, a co-owner who has been properly served is not required to attend the partition hearing or testify. The Clerk of Superior Court can hold the hearing and rule based on the evidence presented. That said, if you want to influence issues like sale versus in‑kind division, who is appointed as commissioner, any move‑out timeline, or whether to mediate, it is wise to appear or submit sworn evidence. You can be subpoenaed to attend if testimony is needed.

Understanding the Problem

You’re asking whether a North Carolina co-owner must personally show up or testify at a partition hearing before the Clerk of Superior Court. The hearing in your case is set to request an order of sale, appointment of a commissioner, a move‑out deadline, and to bypass mediation. One co-owner currently lives in the house. This article explains what the law requires about attendance and testimony at that hearing—nothing more.

Apply the Law

North Carolina partition cases are filed as special proceedings in the county where the land sits. Any cotenant can seek partition. The Clerk first considers whether the property can be fairly divided in kind; if not, the Clerk may order a sale if the evidence shows a division would substantially harm the owners compared to a sale. Hearings are formal; the Rules of Evidence apply, and the Clerk can issue subpoenas. If a respondent does not appear, the Clerk may still proceed, but the petitioner must present competent evidence to meet the legal standards.

Key Requirements

• Proper parties and service: All co-owners must be named and properly served so the Clerk has authority to proceed.
• Right to partition: A cotenant is entitled to partition; the question is whether it is in kind (physical division) or by sale.
• Sale standard: Sale is ordered only if the evidence shows an in‑kind division would cause substantial injury to the owners compared with a sale.
• Evidence: The petitioner must present competent proof (deed/chain of title, surveys or maps if relevant, valuation/appraisal data) to support in‑kind division or sale; live testimony is not mandatory unless subpoenaed.
• Commissioner and sale process: If a sale is ordered, the Clerk appoints a commissioner and the sale follows the judicial sale statutes; possession issues may be addressed to allow closing and delivery to the purchaser.
• Mediation: The Clerk can order mediation in matters before the Clerk or allow a request to bypass it for good cause.

What the Statutes Say

• North Carolina Gen. Stat. Chapter 46A (Partition) – Governs partition proceedings, including division in kind, sale, commissioners, and related procedures.
• N.C. Gen. Stat. § 7A-38.3B (Mediation in matters before the Clerk) – Authorizes the Clerk to order mediation and sets mediation procedures.
• N.C. Gen. Stat. § 1-301.2 (Transfer of special proceedings) – Requires transfer to Superior Court if pleadings raise title disputes, equitable defenses, or requests for equitable relief.
• Article 29A, Chapter 1 (Judicial Sales) – Sets the process for court-ordered real estate sales and confirmation.

Analysis

Apply the Rule to the Facts: Because one co-owner occupies the home, the Clerk can still proceed if that person was properly served, even if they do not attend. The petitioner must present competent proof of co‑ownership and why sale (rather than carving the property) avoids substantial injury. If the Clerk orders a sale, the Clerk may appoint a commissioner and, when necessary to allow the sale to close, set a reasonable move‑out timeline; attendance is not required to do so, but nonappearance means losing the chance to be heard on those details.

Process & Timing

1. Who files: Any cotenant. Where: Clerk of Superior Court in the county where the land is located. What: Partition special proceeding petition with a Special Proceedings Summons (AOC‑SP‑100). When: Respondents typically have a short window (often 10 days after service) to answer; a hearing is noticed after that period.
2. The Clerk holds a formal hearing. The petitioner presents deeds, maps/surveys (if helpful), and valuation evidence to support in‑kind division or sale and the request to appoint a commissioner; the Clerk may order or waive mediation based on circumstances.
3. If a sale is ordered, the Clerk appoints a commissioner. The sale follows judicial sale procedures. After sale confirmation, the court can address possession so the purchaser can take the property; noncompliance can be enforced through court processes.

Exceptions & Pitfalls

• Heirs property: If the land is “heirs property,” additional steps may apply (like appraisal and buyout options) and can affect the timing and outcome.
• Title disputes: If someone disputes ownership, raises equitable defenses, or requests equitable relief, the Clerk must transfer the case to Superior Court.
• Evidence gaps: Nonappearance doesn’t result in an automatic win; the petitioner still must prove substantial injury for a sale. Lack of valuation or appraisal evidence can derail a sale request.
• Service and SCRA: Improper service or missing servicemember affidavits can delay orders. Ensure service is clean to avoid continuances.
• Subpoenas: Even if you prefer not to attend, you must appear if properly subpoenaed to testify or produce documents.

Talk to a Partition Action Attorney

If you’re dealing with a partition sale, a commissioner appointment, or a move‑out timeline, 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.