Bill To Modernize Partition of Property Statutes On Its Way To Governor

June 17, 2020

Senate Bill 729, which Gov. Roy Cooper is expected to sign into law, will modernize the state’s statutes governing the partition of property and make technical, conforming and modernizing amendments to the elective life estate statute.

This matter was reviewed by the General Statutes Commission, a diverse committee of legislators and representatives of North Carolina law schools, that reviews and recommends statutory changes to the General Assembly. NCAJ worked with the staff of the General Statutes Commission during its review, which occurred over several years.

NCAJ Eminent Domain Section Legislative Chair Kenneth Sack provides an overview of the changes below.

Under current law, when property is concurrently owned by multiple cotenants, any cotenant has a right to move to partition the property in a special proceeding before a clerk of superior court. There are two partition procedures:(i) actual partition, where property is physically apportioned among the cotenants, and (ii) partition sale, where property is sold and the sale proceeds are divided among the cotenants. This bill modernizes the partition of property statutes by reorganizing them into a new chapter, 46A, updating and clarifying language, and making substantive changes, including the following:

Generally, the court shall allocate among all the cotenants those reasonable attorneys’ fees incurred for the benefit of all the cotenants.(§ 46A-3)

The petitioner is not required to serve or join spouses of cotenants unless the spouse is also a cotenant.(§ 46A-21(c))

A cotenant has a right to contribution from the other cotenants for the cotenant’s payment of the property’s carrying costs and improvements.(§ 46A-27).

A party to whom a share of real property has been apportioned in an actual partition may obtain an order for possession of the share.(§ 46A-59).

The bill also makes conforming and technical amendments to statutes referencing the current partition chapter, which include: (i) updating cross-references, (ii) replacing legalese with plain English, (iii) fixing punctuation, (iv) making stylistic updates, (v) fixing the format of citations and lists, (vi) making language gender-neutral, (vii) reorganizing language, (viii) deleting technically unnecessary language, and (ix) clarifying ambiguous references. This bill also makes technical, conforming, and modernizing amendments to the elective life estate statute, some of which were requested by the Real Property Section of the N.C. Bar Association.

What has not changed is that:

  1. A partition action is still a special proceeding;
  2. The time for answering a summons is as provided in G.S. 1-394 and that a partition petition must give notice about the possiblility of free legal services and the allocation of attorneys’ fees’
  3. A partition proceeding may be brought in the county where the real property is located or, if the property is located in more than one county, in any county where the property is located;
  4. Tenants in common and joint tenansts, or the personal representative of a deceased tenant in common or co-tenant.  All tenants in common and joint tenants are necessary parties, along w/ any person with an interest in the property;
  5. Provides for service by publication if the petitioner cannot ascertain the name of a party, and unknown or unlocatable parties shall be represented by a guardian ad litem;
  6. A judgment creditor of a cotenant may seek an actual partition of the property and may execute the judgment against the share apportioned to the judgment debtor by setting aside the judgment debtor’s homestead in the share and selling the remaining property.