2005 North Carolina Code - General Statutes Article 2 - Partition Sales of Real Property.

Article 2.

Partition Sales of Real Property.

§ 46‑22.  Sale in lieu of partition.

(a)       The court shall order a sale of the property described in the petition, or of any part, only if it finds, by a preponderance of the evidence, that an actual partition of the lands cannot be made without substantial injury to any of the interested parties.

(b)       "Substantial injury" means the fair market value of each share in an in‑kind partition would be materially less than the share of each cotenant in the money equivalent that would be obtained from the sale of the whole, and if an in‑kind division would result in material impairment of the cotenant's rights.

(c)       The court shall specifically find the facts supporting an order of sale of the property.

(d)       The party seeking a sale of the property shall have the burden of proving substantial injury under the provisions of this section. (1868‑9, c. 122, ss. 13, 31; Code, ss. 1904, 1921; Rev., s. 2512; C.S., s. 3233; 1985, c. 626, s. 1.)

 

§ 46‑23.  Remainder or reversion sold for partition; outstanding life estate.

The existence of a life estate in any land shall not be a bar to a sale for partition of the remainder or reversion thereof, and for the purposes of partition the tenants in common or joint tenants shall be deemed seized and possessed as if no life estate existed. But this shall not interfere with the possession of the life tenant during the existence of his estate. (1887, c. 214, s. 2; Rev., s. 2508; C.S., s. 3234.)

 

§ 46‑24.  Life tenant as party; valuation of life estate.

In all proceedings for partition of land whereon there is a life estate, the life tenant may join in the proceeding and on a sale the interest on the value of the share of the life tenant shall be received and paid to such life tenant annually; or in lieu of such annual interest, the value of such share during the probable life of such life tenant shall be ascertained and paid out of the proceeds to such life tenant absolutely. (1887, c. 214, s. 3; Rev., s. 2509; C.S., s. 3235.)

 

§ 46‑25.  Sale of standing timber on partition; valuation of life estate.

When two or more persons own, as tenants in common, joint tenants or copartners, a tract of land, either in possession, or in remainder or reversion, subject to a life estate, or where one or more persons own a remainder or reversionary interest in a tract of land, subject to a life estate, then in any such case in which there is standing timber upon any such land, a sale of said timber trees, separate from the land, may be had upon the petition of one or more of said owners, or the life tenant, for partition among the owners thereof, including the life tenant, upon such terms as the court may order, and under like proceedings as are now prescribed by law for the sale of land for partition: Provided, that when the land is subject to a life estate, the life tenant shall be made a party to the proceedings, and shall be entitled to receive his or her portion of the net proceeds of sales, to be ascertained under the mortality tables established by law: Provided further, that prior to a judgment allowing a life tenant to sell the timber there must be a finding that the cutting is in keeping with good husbandry and that no substantial injury will be done to the remainder interest. (1895, c. 187; Rev., s. 2510; C.S., s. 3236; 1949, c. 34; 1975, c. 476, s. 1; 1997‑133, s. 3.)

 

§ 46‑26.  Sale of mineral interests on partition.

In case of the partition of mineral interests, in all instances where it is made to appear to the court that it would be for the best interests of the tenants in common, or joint tenants, of such interests to have the same sold, or if actual partition of the same cannot be had without injury to some or all of such tenants (in common), then it is lawful for and the duty of the court to order a sale of such mineral interests and a division of the proceeds as the interests of the parties may appear. (1905, c. 90, s. 2; Rev., s. 2507; C.S., s. 3237.)

 

§ 46‑27.  Sale of land required for public use on cotenant's petition.

When the lands of joint tenants or tenants in common are required for public purposes, one or more of such tenants, or their guardian for them, may file a petition verified by oath, in the superior court of the county where the lands or any part of them lie, setting forth therein that the lands are required for public purposes, and that their interests would be promoted by a sale thereof. Whereupon the court, all proper parties being before it, and the facts alleged in the petition being ascertained to be true, shall order a sale of such lands, or so much thereof as may be necessary. The expenses, fees and costs of this proceeding shall be paid in the discretion of the court. Mediator fees and costs of mediation shall be assessed in accordance with G.S. 7A‑38.3B. (1868‑9, c. 122, s. 16; Code, s. 1907; Rev., s. 2518; C.S., s. 3238; 1949, c. 719, s. 2; 2005‑67, s. 4.)

 

§ 46‑28.  Sale procedure.

(a)       The procedure for a partition sale shall be the same as is provided in Article 29A of Chapter 1 of the General Statutes.

(b)       The commissioners shall certify to the court that at least 20 days prior to sale a copy of the notice of sale was sent by first class mail to the last known address of all petitioners and respondents who previously were served by personal delivery or by registered or certified mail. The commissioners shall also certify to the court that at least ten days prior to any resale pursuant to G.S. 46‑28.1(e) a copy of the notice of resale was sent by first class mail to the last known address of all parties to the partition proceeding who have filed a written request with the court that they be given notice of any resale. An affidavit from the commissioners that copies of the notice of sale and resale were mailed to all parties entitled to notice in accordance with this section shall satisfy the certification requirement and shall also be deemed prima facie true. If after hearing it is proven that a party seeking to revoke the order of confirmation of a sale or subsequent resale was mailed notice as required by this section prior to the date of the sale or subsequent resale, then that party shall not prevail under the provisions of G.S. 46‑28.1(a)(2)a. and b. (1868‑9, c. 122, ss. 13, 31; Code, ss. 1904, 1921; Rev., s. 2512; C.S., s. 3239; 1949, c. 719, s. 2; 1985, c. 626, s. 2; 1987, c. 282, s. 7.)

 

§ 46‑28.1.  Petition for revocation of confirmation order.

(a)       Notwithstanding G.S. 46‑28 or any other provision of law, an order confirming the partition sale of real property shall not become final and effective until 15 days after entered. At any time before the confirmation order becomes final and effective, any party to the partition proceeding or the purchaser may petition the court to revoke its order of confirmation and to order the withdrawal of the purchaser's offer to purchase the property upon the following grounds:

(1)       In the case of a purchaser, a lien remains unsatisfied on the property to be conveyed.

(2)       In the case of any party to the partition proceeding:

a.         Notice of the partition was not served on the petitioner for revocation as required by Rule 4 of the Rules of Civil Procedure; or

b.         Notice of the sale was not mailed to the petitioner for revocation as required by G.S. 46‑28(b); or

c.         The amount bid or price offered is inadequate and inequitable and will result in irreparable damage to the owners of the real property.

In no event shall the confirmation order become final or effective during the pendency of a petition under this section. No upset bid shall be permitted after the entry of the confirmation order.

(b)       The party petitioning for revocation shall deliver a copy of the petition to all parties required to be served under Rule 5 of G.S. 1A‑1, and the officer or person designated to make such sale in the manner provided for service of process in Rule 4(j) of G.S. 1A‑1. The court shall schedule a hearing on the petition within a reasonable time and shall cause a notice of the hearing to be served on the petitioner, the officer or person designated to make such a sale and all parties required to be served under Rule 5 of G.S. 1A‑1.

(c)       In the case of a petition brought under this section by a purchaser claiming the existence of an unsatisfied lien on the property to be conveyed, if the purchaser proves by a preponderance of the evidence that:

(1)       A lien remains unsatisfied on the property to be conveyed; and

(2)       The purchaser has not agreed in writing to assume the lien; and

(3)       The lien will not be satisfied out of the proceeds of the sale; and

(4)       The existence of the lien was not disclosed in the notice of sale of the property, the court may revoke the order confirming the sale, order the withdrawal of the purchaser's offer, and order the return of any money or security to the purchaser tendered pursuant to the offer.

The order of the court in revoking an order of confirmation under this section may not be introduced in any other proceeding to establish or deny the existence of a lien.

(d)       In the case of a petition brought pursuant to this section by a party to the partition proceeding, if the court finds by a preponderance of the evidence that petitioner has proven a case pursuant to a., b., or c. of subsection (a)(2), the court may revoke the order confirming the sale, order the withdrawal of the purchaser's offer, and order the return of any money or security to the purchaser tendered pursuant to the offer.

(e)       If the court revokes its order of confirmation under this section, the court shall order a resale. The procedure for a resale is the same as is provided for an original public sale under Article 29A of Chapter 1 of the General Statutes. (1977, c. 833, s. 1; 1985, c. 626, ss. 3‑7; 2001‑271, s. 19.)

 

§ 46‑28.2.  When bidder may purchase.

After the order of confirmation becomes final and effective, the successful bidder may immediately purchase the property. (1977, c. 833, s. 3; 1985, c. 626, s. 8.)

 

§ 46‑29.  Repealed by Session Laws 1949, c. 719, s. 2.

 

§ 46‑30.  Deed to purchaser; effect of deed.

The deed of the officer or person designated to make such sale shall convey to the purchaser such title and estate in the property as the tenants in common, or joint tenants, and all other parties to the proceeding had therein. (1868‑9, c. 122, ss. 13, 31; Code, ss. 1904, 1921; Rev. s. 2512; C.S., s. 3241; 1949, c. 719, s. 2.)

 

§ 46‑31.  Clerk not to appoint self, assistant or deputy to sell real property.

No clerk of the superior court shall appoint himself or his assistant or deputy to make sale of any property in any proceeding before him. (1868‑9, c. 122, s. 15; Code, s. 1906; 1899, c. 161; Rev., s. 2513; C.S., s. 3242; 1949, c. 719, s. 2.)

 

§ 46‑32.  Repealed by Session Laws 1949, c. 719, s. 2.

 

§ 46‑33.  Shares in proceeds to cotenants secured.

At the time that the order of confirmation becomes final, the court shall secure to each tenant in common, or joint tenant, his ratable share in severalty of the proceeds of sale. (1868‑9, c. 122, s. 31; Code, s. 1921; Rev., s. 2513; C.S., s. 3244; 1977, c. 833, s. 2.)

 

§ 46‑34.  Shares to persons unknown or not sui juris secured.

When a sale is made under this Chapter, and any party to the proceedings be an infant, non compos mentis, imprisoned, or beyond the limits of the State, or when the name of any tenant in common is not known, it is the duty of the court to decree the share of such party, in the proceeds of sale, to be so invested or settled that the  same may be secured to such party or his real representative. (1868‑9, c. 122, s. 17; Code, s. 1908; 1887, c. 284, s. 3; Rev., s. 2516; C.S., s. 3245.)