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S729: GSC Modernize Partition Laws. Latest Version

GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2019
S 2

SENATE BILL 729
Judiciary Committee Substitute Adopted 5/26/20

Short Title: GSC Modernize Partition Laws. (Public)

Sponsors:

Referred to:

May 14, 2020

1 A BILL TO BE ENTITLED
2 AN ACT TO MODERNIZE THE STATUTES ON PARTITION OF PROPERTY AND TO
3 MAKE TECHNICAL, CONFORMING, AND MODERNIZING AMENDMENTS TO THE
4 ELECTIVE LIFE ESTATE STATUTE, AS RECOMMENDED BY THE GENERAL
5 STATUTES COMMISSION.

6 The General Assembly of North Carolina enacts:
7
8 PART I. RECODIFY AND MODERNIZE PARTITION OF PROPERTY STATUTES
9 SECTION 1.(a) The General Statutes are amended by adding a new Chapter 46A to
10 be entitled "Partition." The new Chapter shall be divided into three Articles, as follows:
11 (1) "Article 1. General Provisions."
12 (2) "Article 2. Partition of Real Property."

13 (3) "Article 3. Partition of Personal Property."
14 SECTION 1.(b) Article 2 of Chapter 46A of the General Statutes, as created by
15 subsection (a) of this section, shall be divided into three Parts, as follows:
16 (1) "Part 1. General Provisions."
17 (2) "Part 2. Actual Partition."
18 (3) "Part 3. Partition Sale."
19 SECTION 2.(a) G.S. 46-1 (Partition is a special proceeding) is recodified as

20 G.S. 46A-1 in Article 1 of Chapter 46A of the General Statutes, as created by Section 1 of this
21 act.
22 SECTION 2.(b) G.S. 46-2 (Venue in partition) is recodified as G.S. 46A-20 in Part
23 1 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
24 SECTION 2.(c) G.S. 46-2.1 (Summons) is recodified as G.S. 46A-2 in Article 1 of
25 Chapter 46A of the General Statutes, as created by Section 1 of this act.

26 SECTION 2.(d) G.S. 46-3 (Petition by cotenant or personal representative of
27 cotenant) is recodified as G.S. 46A-21 in Part 1 of Article 2 of Chapter 46A of the General
28 Statutes, as created by Section 1 of this act.
29 SECTION 2.(e) G.S. 46-3.1 (Court's authority to make orders pending final
30 determination of proceeding) is recodified as G.S. 46A-28 in Part 1 of Article 2 of Chapter 46A
31 of the General Statutes, as created by Section 1 of this act.
32 SECTION 2.(f) G.S. 46-4 (Surface and minerals in separate owners; partitions

33 distinct) is recodified as G.S. 46A-24 in Part 1 of Article 2 of Chapter 46A of the General
34 Statutes, as created by Section 1 of this act.

*S729-v-2* General Assembly Of North Carolina Session 2019

1 SECTION 2.(g) G.S. 46-5 (Petition by judgment creditor of cotenant; assignment of
2 homestead) is recodified as G.S. 46A-23 in Part 1 of Article 2 of Chapter 46A of the General
3 Statutes, as created by Section 1 of this act.
4 SECTION 2.(h) G.S. 46-6 (Unknown or unlocatable parties; summons, notice, and
5 representation) is recodified as G.S. 46A-22 in Part 1 of Article 2 of Chapter 46A of the General
6 Statutes, as created by Section 1 of this act.
7 SECTION 2.(i) G.S. 46-7 (Commissioners appointed) is recodified as

8 G.S. 46A-50(a) in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by
9 Section 1 of this act.
10 SECTION 2.(j) G.S. 46-7.1 (Compensation of commissioners) is recodified as
11 G.S. 46A-50(b) in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by
12 Section 1 of this act.
13 SECTION 2.(k) G.S. 46-8 (Oath of commissioners) is recodified as G.S. 46A-50(c)
14 in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.

15 SECTION2.(l) G.S. 46-9(Delayorneglectofcommissionerpenalized)isrecodified
16 as G.S. 46A-50(d) in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by
17 Section 1 of this act.
18 SECTION 2.(m) G.S. 46-10 (Commissioners to meet and make partition; equalizing
19 shares) is recodified as G.S. 46A-51(a) in Part 2 of Article 2 of Chapter 46A of the General
20 Statutes, as created by Section 1 of this act.

21 SECTION2.(n) G.S. 46-11(Oweltyto bearinterest)is recodified as G.S. 46A-51(b)
22 in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
23 SECTION2.(o) G.S. 46-12(Oweltyfrominfant's sharedueatmajority)isrecodified
24 as G.S. 46A-51(c) in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by
25 Section 1 of this act.
26 SECTION 2.(p) G.S. 46-13 (Partition where shareowners unknown or title disputed;
27 allotment of shares in common) is recodified as G.S. 46A-52 in Part 2 of Article 2 of Chapter

28 46A of the General Statutes, as created by Section 1 of this act.
29 SECTION 2.(q) G.S. 46-14 (Judgments in partition of remainders binding on parties
30 thereto)is recodified asG.S. 46A-25inPart1ofArticle2ofChapter46AoftheGeneral Statutes,
31 as created by Section 1 of this act.
32 SECTION 2.(r) G.S. 46-16 (Partial partition; balance sold or left in common) is
33 recodified as G.S. 46A-26 in Part1 ofArticle2ofChapter46AoftheGeneral Statutes,as created
34 by Section 1 of this act.

35 SECTION 2.(s) G.S. 46-17 (Report of commissioners; contents; filing) is recodified
36 as G.S. 46A-55(a) in Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by
37 Section 1 of this act.
38 SECTION 2.(t) G.S. 46-17.1 (Dedication of streets) is recodified as G.S. 46A-54 in
39 Part 2 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
40 SECTION 2.(u) G.S. 46-18 (Map embodying survey to accompany report) is

41 recodified as G.S. 46A-55(b) in Part 2 of Article 2 of Chapter 46A of the General Statutes, as
42 created by Section 1 of this act.
43 SECTION 2.(v) G.S. 46-19 (Confirmation and impeachment of report) is recodified
44 asG.S. 46A-56inPart2ofArticle2ofChapter46AoftheGeneralStatutes,ascreatedbySection
45 1 of this act.
46 SECTION 2.(w) G.S. 46-20 (Report and confirmation enrolled and registered;
47 effect; probate) is recodified as G.S. 46A-57 in Part 2 of Article 2 of Chapter 46A of the General

48 Statutes, as created by Section 1 of this act.
49 SECTION 2.(x) G.S. 46-21 (Clerk to docket owelty charges; no release of land and
50 no lien)is recodified as G.S. 46A-58in Part2ofArticle2 ofChapter46Aof theGeneral Statutes,
51 as created by Section 1 of this act.

Page 2 Senate Bill 729-Second Edition General Assembly Of North Carolina Session 2019

1 SECTION 2.(y) G.S. 46-22 (Sale in lieu of partition) is recodified as G.S. 46A-75
2 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
3 SECTION 2.(z) G.S. 46-22.1 (Mediation) is recodified as G.S. 46A-29 in Part 1 of
4 Article 2 of Chapter 46A of the General Statutes, as created by Section 1 of this act.
5 SECTION 2.(aa) G.S. 46-23 (Remainder or reversion sold for partition; outstanding
6 life estate) is recodified as G.S. 46A-79 in Part 3 of Article 2 of Chapter 46A of the General
7 Statutes, as created by Section 1 of this act.

8 SECTION 2.(bb) G.S. 46-24 (Life tenant as party; valuation of life estate) is
9 recodified as G.S. 46A-78 in Part3 ofArticle2ofChapter46AoftheGeneral Statutes,as created
10 by Section 1 of this act.
11 SECTION 2.(cc) G.S. 46-25 (Sale of standing timber on partition; valuation of life
12 estate) is recodified as G.S. 46A-80 in Part 3 of Article 2 of Chapter 46A of the General Statutes,
13 as created by Section 1 of this act.
14 SECTION 2.(dd) G.S. 46-26 (Sale of mineral interests on partition) is recodified as

15 G.S. 46A-81 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section
16 1 of this act.
17 SECTION 2.(ee) G.S. 46-27 (Sale of land required for public use on cotenant's
18 petition) is recodified as G.S. 46A-82 in Part 3 of Article 2 of Chapter 46A of the General
19 Statutes, as created by Section 1 of this act.
20 SECTION 2.(ff) Subsections (a) and (b) of G.S. 46-28 (Sale procedure) are

21 recodified as subsections (a) and (d), respectively, of G.S. 46A-76 in Part 3 of Article 2 of
22 Chapter 46A of the General Statutes, as created by Section 1 of this act.
23 SECTION 2.(gg) Subsection (c) of G.S. 46-28 (Sale procedure) is recodified as
24 G.S. 46A-77 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by Section
25 1 of this act.
26 SECTION 2.(hh) Subsections (a), (b), (c), (d), and (e) of G.S. 46-28.1 (Petition for
27 revocation of confirmation order) are recodified as subsections (a), (c), (d), (e), and (f),

28 respectively, of G.S. 46A-83 in Part 3 of Article 2 of Chapter 46A of the General Statutes, as
29 created by Section 1 of this act.
30 SECTION 2.(ii) Subsection (d1) of G.S. 46-28.1 (Petition for revocation of
31 confirmation order) is recodified as G.S. 46A-84 in Part 3 of Article 2 of Chapter 46A of the
32 General Statutes, as created by Section 1 of this act.
33 SECTION 2.(jj) Subsection (f) of G.S. 46-28.1 (Petition for revocation of
34 confirmation order) is recodified as subsection (a) of G.S. 46A-85 in Part 3 of Article 2 of

35 Chapter 46A of the General Statutes, as created by Section 1 of this act.
36 SECTION 2.(kk) G.S. 46-28.2 (When bidder may purchase) is recodified as
37 G.S. 46A-85(b) in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by
38 Section 1 of this act.
39 SECTION 2.(ll) G.S. 46-30 (Deed to purchaser; effect of deed) is recodified as
40 G.S. 46A-85(c) in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by

41 Section 1 of this act.
42 SECTION 2.(mm) G.S. 46-31 (Clerk not to appoint self, assistant or deputy to sell
43 real property) is recodified as G.S. 46A-76(c) in Part 3 of Article 2 ofChapter 46A of the General
44 Statutes, as created by Section 1 of this act.
45 SECTION 2.(nn) G.S. 46-33 (Shares in proceeds to cotenants secured) is recodified
46 as G.S. 46A-85(d) in Part 3 of Article 2 of Chapter 46A of the General Statutes, as created by
47 Section 1 of this act.

48 SECTION 2.(oo) G.S. 46-34 (Shares to persons unknown or not sui juris secured) is
49 recodified as G.S. 46A-86 in Part3 ofArticle2ofChapter46AoftheGeneral Statutes,as created
50 by Section 1 of this act.

Senate Bill 729-Second Edition Page 3 General Assembly Of North Carolina Session 2019

1 SECTION 2.(pp) G.S. 46-42 (Personal property may be partitioned; commissioners
2 appointed) is recodified as G.S. 46A-100 in Article 3 of Chapter 46A of the General Statutes, as
3 created by Section 1 of this act.
4 SECTION 2.(qq) G.S. 46-43 (Report of commissioners) is recodified as
5 G.S. 46A-101(b) in Article 3 of Chapter 46A of the General Statutes, as created by Section 1 of
6 this act.
7 SECTION 2.(rr) G.S. 46-43.1 (Confirmation; impeachment) is recodified as

8 G.S. 46A-101(c) in Article 3 of Chapter 46A of the General Statutes, as created by Section 1 of
9 this act.
10 SECTION 2.(ss) G.S. 46-44 (Sale of personal property on partition) is recodified as
11 G.S. 46A-102 in Article 3 of Chapter 46A of the General Statutes, as created by Section 1 of this
12 act.
13 SECTION 3. Chapter 46A of the General Statutes, as created by Section 1 of this
14 act and as amended by Section 2 of this act, reads as rewritten:

15 "Chapter 46A.
16 "Partition.
17 "Article 1.
18 "General Provisions.
19 "§ 46A-1. Partition is a special proceeding.
20 Partition under this Chapter shall be by special proceeding, and the procedure shall be the

21 same in all respects as prescribed by law in special proceedings, except as modified herein.
22 A partition of property under this Chapter is by special proceeding and, except as modified
23 in this Chapter, its procedure is provided in Subchapter XII of Chapter 1 of the General Statutes.
24 "§ 46A-2. Summons.Summons; notice included in petition.
25 (a) In partition proceedings initiated under this Chapter, the period of time for answering
26 a summons is provided in G.S. 1-394.
27 (b) Written notice shall be included in the petition The petition shall include written

28 notice in a manner reasonably calculated to make the respondent aware of the following:
29 (1) That the respondent has the right to seek the advice of an attorney and that
30 free legal services maybe available to the respondent bycontacting Legal Aid
31 of North Carolina or other legal services organizations.
32 (2) That pursuant to G.S. 6-21thecourthas theauthority,in its discretion, to order
33 reasonable attorneys' fees to be paid as a part of the costs of the
34 proceeding.That pursuant to G.S. 46A-3, the court may order reasonable

35 attorneys' fees to be paid as a part of the costs of the proceeding.
36 "§ 46A-3. Attorneys' fees.
37 (a) In proceedings to partition propertyunder this Chapter, the court shall allocate among
38 all the cotenants of the property those reasonable attorneys' fees incurred by any cotenant for the
39 common benefit of all the cotenants, unless a cotenant shows that doing so would be inequitable.
40 The allocation shall be according to each cotenant's interest in the property.

41 (b) The attorneys' fees described in subsection (a) of this section do not include attorneys'
42 fees incurred in disputing the method of partition or the division of the proceeds of a partition
43 sale. Reasonable attorneys' fees incurred by a cotenant in disputing an issue described in this
44 subsection shall be allocated by the court among those cotenants determined by the court to be
45 aligned with the cotenant on that issue. The allocation shall be according to each aligned
46 cotenant's interest in the property relative to the total interest of all the aligned cotenants in the
47 property.

48 (c) The court has discretion to allocate among the parties reasonable attorneys' fees that
49 are not described in subsection (a) or (b) of this section.
50 "Article 2.
51 "Partition of Real Property.

Page 4 Senate Bill 729-Second Edition General Assembly Of North Carolina Session 2019

1 "Part 1. General Provisions.
2 "§ 46A-20. Venue in partition.
3 The proceeding for partition, actual or bysale, must be instituted in the countywhere the land
4 or some part thereof lies. If the land to be partitioned consists of one tract lying in more than one
5 county, or consists of several tracts lying in different counties, proceedings may be instituted in
6 either of the counties in which a part of the land is situated, and the court of such county wherein
7 the proceedings for partition are first brought shall have jurisdiction to proceed to a final

8 disposition of said proceedings, to the same extent as if all of said land was situate in the county
9 where the proceedings were instituted.
10 A proceeding to partition real property shall be commenced in the county where the property
11 is located. If the property, whether consisting of one or more tracts, is located in more than one
12 county, the proceeding may be commenced in any of the counties where any part of the property
13 is located; in this case, thepetitionershall filea noticeoflis pendens in each oftheothercounties.
14 "§ 46A-21. Petition by cotenant or personal representative of cotenant.cotenant; necessary

15 and proper parties; joinder of spouses.
16 Oneormorepersonsclaimingreal estateas joint tenants ortenants in commonorthepersonal
17 representative of a decedent joint tenant, or tenant in common, when sale of such decedent's real
18 property to make assets is alleged and shown as required by G.S. 28A-17-3, may have partition
19 by petition to the superior court.
20 (a) Any person claiming real property as a tenant in common or joint tenant may petition

21 to partition the property in superior court. The personal representative of a deceased tenant in
22 common or deceased joint tenant may also petition to partition the property as part of a petition
23 to sell the deceased cotenant's interest for the payment of debts and other claims against the
24 deceased cotenant's estate as provided in G.S. 28A-17-3.
25 (b) The petitioner shall serve and join all tenants in common and joint tenants of the
26 property. The petitioner may serve and join any other person with an interest in the property, any
27 lessee of the property, and any holder of a lien, mortgage, or deed of trust on the property.

28 (c) The petitioner is not required to serve or join spouses of cotenants of the real property
29 unless the spouse is also a cotenant.
30 "§ 46A-22. Unknown or unlocatable parties; summons, notice, and representation.
31 (a) If, upon the filing of a petition for partition, it be made to appear to the court by
32 affidavit or otherwise that there are any persons interested in the premises whose names are
33 unknown to and cannot after due diligence be ascertained by the petitioner, the court shall order
34 notices to be given to all such persons bya publication of the petition, or of the substance thereof,

35 with the order of the court thereon, in one or more newspapers to be designated in the order. If,
36 at the time of or subsequent to the filing of the petition, the petitioner shows by affidavit or
37 otherwise that the petitioner cannot after due diligence ascertain the name or location of a person
38 that the petitioner is required to, or chooses to, serve under G.S. 46A-21(b), the court shall
39 authorize service bypublication under G.S. 1A-1, Rule 4. The notice bypublication shall include
40 a description of the property which that includes the street address, if any, or other common

41 designation for the property, if any, and may include the legal description of the property.
42 (b) Before or after such general notice by publication if any person interested in the
43 premises and entitled to notice fails to appear, the court shall appoint some disinterested person
44 to represent the owner of any shares in the property to be divided, the ownership of which is
45 unknown or unlocatable and unrepresented.Before or after the notice by publication, the court
46 shall appoint a guardian ad litem under G.S. 1A-1, Rule 17, to represent any unknown or
47 unlocatable person that the petitioner is required to, or chooses to, serve under G.S. 46A-21(b).

48 "§ 46A-23. Petition by judgment creditor of cotenant; assignment of homestead.cotenant.
49 When any person owns a judgment duly docketed in the superior court of a county wherein
50 the judgment debtor owns an undivided interest in fee in land as a tenant in common, or joint
51 tenant, and the judgment creditor desires to lay off the homestead of the judgment debtor in the

Senate Bill 729-Second Edition Page 5 General Assembly Of North Carolina Session 2019

1 landand sell the excess, ifany, to satisfyhis judgment, thejudgment creditormayinstitutebefore
2 the clerk of the court of the county wherein the land lies a special proceeding for partition of the
3 land between the tenants in common, making the judgment debtor, the other tenants in common
4 and all other interested persons parties to the proceedingbysummons. The proceeding shall then
5 be in all other respects conducted as other special proceedings for the partition of land between
6 tenants in common. Upon the actual partition of the land the judgment creditor may sue out
7 execution on his judgment, as allowed by law, and have the homestead of the judgment debtor

8 allotted to him and sell the excess, as in other cases where the homestead is allotted under
9 execution. The remedy provided for in this section shall not deprive the judgment creditor of any
10 other remedy in law or in equity which he may have for the enforcement of his judgment lien.
11 (a) If a judgment debtor has a personal liability on a judgment docketed in the superior
12 court of a county where the judgment debtor owns real property as a tenant in common or joint
13 tenant, the judgment creditor may petition for an actual partition of the property. If the court
14 apportions a share of the property to the judgment debtor, the judgment creditor may seek to

15 execute the judgment against the judgment debtor's share by (i) setting aside the judgment
16 debtor's homestead in the share, as determined according to Article X of the North Carolina
17 Constitution and Article 16 of Chapter 1C of the General Statutes, and (ii) selling the remaining
18 part of the share.
19 (b) The remedyprovided in this section does not deprive a judgment creditor of anyother
20 remedy in law or equity to enforce a judgment lien.

21 "§ 46A-24. Surfaceandminerals oil,gas, ormineral interests in separateowners;partitions
22 distinct.
23 When the title to the mineral interests in any land has become separated from the surface in
24 ownership, the tenants in common or joint tenants of such mineral interests may have partition
25 of the same, distinct from the surface, and without joining as parties the owner or owners of the
26 surface; and the tenants in common or joint tenants of the surface mayhave partition of the same,
27 in manner provided by law, distinct from the mineral interest and without joining as parties the

28 owner or owners of the mineral interest. In all instances where the mineral interests and surface
29 interest have thus become separated in ownership, the owner or owners of the mineral interests
30 shall not be compelled to join in a partition of the surface interests, nor shall the owner or owners
31 of the surface interest be compelled to join in a partition of the mineral interest, nor shall the
32 rights of either owner be prejudiced by a partition of the other interests.
33 When titleto theoil, gas, ormineral interests in real propertyhas beenseparatedin ownership
34 from the title to the surface of the property, a tenant in common or joint tenant of the oil, gas, or

35 mineral interests maypartition the oil, gas, or mineral interests, distinct from the surface, without
36 joining the owner of the surface. Similarly, a tenant in common or joint tenant of the surface of
37 the property may partition the surface, distinct from the oil, gas, or mineral interests, without
38 joiningtheowneroftheoil, gas, ormineral interests. Anowneroftheoil,gas, ormineral interests
39 is not required to join a partition of the surface of the property, and an owner of the surface of
40 the property is not required to join a partition of the oil, gas, or mineral interests. The rights of

41 either owner shall not be prejudiced by a partition of the other interests.
42 "§ 46A-25. Judgments in partition of remainders binding on parties thereto.Partition of
43 real property subject to a contingent future interest; requirements.
44 Where land is conveyed by deed, or devised by will, upon contingent remainder, executory
45 devise, or other limitation, any judgment of partition rendered in an action or special proceeding
46 in the superior court authorizing a division or partition of said lands, and to which the life tenant
47 ortenants, and all otherpersonsthenin being,ornot in being,take suchlandas ifthe contingency

48 had then happened, are parties, and those unborn being duly represented by guardian ad litem,
49 such judgment of partition authorizing division or partition of said lands among the respective
50 tenants and remaindermen or executory devisees, will be valid and binding upon all parties
51 thereto and upon all other persons not then in being.

Page 6 Senate Bill 729-Second Edition General Assembly Of North Carolina Session 2019

1 When real property is subject to a contingent future interest, any judgment partitioning the
2 property is valid and binding upon all persons having an interest in the property, whether or not
3 in being, if all of the following requirements are met:
4 (1) The following persons are parties:
5 a. Persons with a present interest or a vested future interest.
6 b. Persons in being with a contingent future interest and that would have
7 a present interest if the contingency had occurred at the time the

8 proceeding was commenced.
9 c. Persons not in being with a contingent future interest.
10 (2) The following parties are represented by a guardian ad litem appointed under
11 G.S. 1A-1, Rule 17:
12 a. Unborn individuals.
13 b. Parties not in being.
14 c. Parties who are minors or incompetent adults and who do not have a

15 guardian of the estate or general guardian.
16 d. Unknown or unlocatable parties.
17 "§ 46A-26. Partial partition; balance sold or left in common.Methods of partition.
18 In all proceedings under this Chapter actualpartitionmaybe made of apartoftheland sought
19 tobepartitionedand asaleoftheremainder;orapartonlyofanylandheldbytenantsincommon,
20 or joint tenants, may be partitioned and the remainder held in cotenancy.

21 In apartition proceeding underthis Article,thecourtshall orderoneofthefollowingmethods
22 of partitioning the real property:
23 (1) Actual partition under Part 2 of this Article.
24 (2) Partition sale under Part 3 of this Article so long as the requirements of that
25 Part are satisfied.
26 (3) Actual partition of part of the property and a partition sale of the remaining
27 part.

28 (4) Partition of part of the property, whether by actual partition or by partition
29 sale, and order that the remaining part continue to be held in cotenancy. The
30 court, however, shall not order a cotenant to continue to hold property in
31 cotenancy over the cotenant's objection.
32 "§ 46A-27. Carrying costs, including property taxes; improvements; right to contribution.
33 (a) Right to Contribution. – A cotenant has a right to contribution from the other
34 cotenants for the cotenant's payment of the real property's carrying costs and for the lesser of the

35 following:
36 (1) The value added to the real property by the cotenant's improvements as of the
37 date of the commencement of the proceeding.
38 (2) The actual costs of the cotenant's improvements.
39 (b) Procedure. – In the case of an actual partition, a cotenant may on application assert
40 the cotenant's right to contribution at any time before the commissioners file their report. In the

41 case of a partition sale, a cotenant may on application assert the right at any time during the
42 partition proceeding.
43 (c) Property Taxes. – A cotenant's right to contribution for property taxes under this
44 section is limited to the amount of property taxes paid by the cotenant during the 10 years
45 preceding the filing of the partition petition, plus interest at the legal rate under G.S. 24-1.
46 (d) Scope. – Nothing in this section affects the rights of cotenants outside a real property
47 partition proceeding initiated under this Chapter.

48 (e) Carrying Costs Defined. – For purposes of this section, "carrying costs" means the
49 actual costs of preserving the value of and the cotenants' interests in the real property, including
50 property taxes, homeowner's insurance, repairs, and payments for a loan to acquire the real
51 property.

Senate Bill 729-Second Edition Page 7 General Assembly Of North Carolina Session 2019

1 "§ 46A-28. Court's authority to make orders pending before final determination of
2 proceeding.proceeding; notice and hearing.
3 Pending final determination of the proceeding, on application of any of the parties in a
4 proceeding to partition land, the court may make such orders as it considers to be in the best
5 interest of the parties, including but not limited to orders relating to possession, payment of
6 secured debt or other liens on the property, occupancy and payment of rents, and to include the
7 appointment of receivers pursuant to G.S. 1-502(6).

8 (a) Before final determination of a proceeding to partition real property, on application
9 of any of the parties, the court may make any orders that it finds to be in the best interest of the
10 parties, including, but not limited to, orders relating to possession, payment of secured debt or
11 other liens on the property, occupancy and payment of rents, the appointment of receivers
12 pursuant to G.S. 1-502(6), and access to the property for the purpose of inspecting, surveying,
13 appraising, or selling the property.
14 (b) A party making a written application under subsection (a) of this section shall serve

15 a copy of the application on all other parties and any other person the court may require. The
16 court shall schedule a hearingon the application, if, within 10 days of being served, a person files
17 a response in opposition to the application or requests a hearing. If no person files a response or
18 requests a hearing within 10 days of being served, the court may decide the application without
19 a hearing.
20 "§ 46A-29. Mediation.

21 (a) Persons interested in the premises may agree at anytime to mediation of a partition.
22 A list of mediators certified by the Dispute Resolution Commission may be obtained from the
23 clerk or from the Commission through the Administrative Office of the Courts.Parties interested
24 in the real property may agree at any time during the proceeding to mediation of a partition.
25 G.S. 7A-38.1 and G.S. 7A-38.3B apply to a mediation under this section.
26 (b) When a partition sale is requested, the court or the clerk court, on its own motion or
27 a motion of a party, may order mediation before considering whether to order a sale. The

28 provisions of G.S. 7A-38.1 and G.S. 7A-38.3B shall apply.
29 "Part 2. Actual Partition.
30 "§ 46A-50. Commissioners appointed; compensation; oath; delay or neglect.
31 (a) The superior court shall appoint three disinterested commissioners to divide and
32 apportion such real estate, or so much thereof as the court may deem best, among the several
33 tenants in common, or joint tenants. Provided, in cases where the land to be partitioned lies in
34 more than one county, then the court may appoint such additional commissioners as it maydeem

35 necessary from counties where the land lies other than the county where the proceedings are
36 instituted.Appointment. – The superior court shall appoint three disinterested commissioners to
37 apportion the real propertyto be partitioned among the cotenants. If the propertyto be partitioned
38 is located in more than one county, the court may appoint additional commissioners if necessary
39 from counties where the property is located other than the county where the proceeding is
40 commenced.

41 (b) The clerk of the superior court shall fix the compensation of commissioners for the
42 partition or division of lands according to the provisions of G.S. 1-408.Compensation. – The
43 clerk of the superior court shall fix the compensation of commissioners for the partition of real
44 property according to G.S. 1-408.
45 (c) The commissioners shall be sworn by a magistrate, the sheriff or any deputy sheriff
46 of the county, or any other person authorized to administer oaths, to do justice among the tenants
47 in common in respect to such partition, according to their best skill and ability.Oath. – The

48 commissioners shall be sworn according to Chapter 11 of the General Statutes.
49 (d) If, after accepting the trust, any of the commissioners unreasonably delay or neglect
50 to execute the same, every such delinquent commissioner shall be liable for contempt and may
51 be removed, and shall be further liable to a penalty of fifty dollars ($50.00), to be recovered by

Page 8 Senate Bill 729-Second Edition General Assembly Of North Carolina Session 2019

1 the petitioner.Delay or Neglect. – If, after accepting the commission, any of the commissioners
2 unreasonably delays or neglects to perform his or her duties as a commissioner, the court may
3 remove the commissioner and appoint a new commissioner.
4 "§ 46A-51. Commissioners to inspect and partition real property; apportioning shares;
5 charging owelty on shares of disproportionately greater value.
6 (a) The commissioners, who shall be summoned by the sheriff, must meet on the
7 premises and partition the same amongthe tenants in common, or joint tenants, according to their

8 respective rights and interests therein, by dividing the land into equal shares in point of value as
9 nearly as possible, and for this purpose theyare empowered to subdivide the more valuable tracts
10 as they may deem best, and to charge the more valuable dividends with such sums of money as
11 they may think necessary, to be paid to the dividends of inferior value, in order to make an
12 equitable partition.Apportioning Shares; Charging Owelty on Shares. – The commissioners
13 together shall inspect the real property and partition it among the cotenants by apportioning it
14 into shares proportionate in value as nearly as possible to the cotenants' interests in the property.

15 To the extent the commissioners find it necessary to make an equitable partition, they may do
16 any of the following:
17 (1) Apportion the property into shares disproportionate in value to the cotenants'
18 interests in the property and charge owelty on the shares of disproportionately
19 greater value in the amounts of money necessary to redress the disproportion,
20 to be paid to the shares of disproportionately lesser value.

21 (2) Adjust the shares or any owelty charged on the shares to account for a court
22 order for contribution under G.S. 46A-27 or any other court order.
23 (b) The sums of money due from the more valuable dividends shall bear interest until
24 paid.Interest on Owelty. – Owelty shall bear interest at the legal rate under G.S. 24-1 until paid.
25 (c) When a minor to whom a more valuable dividend shall fall is charged with the
26 payment of any sum, the money shall not be payable until such minor arrives at the age of 18
27 years, but the general guardian, if there be one, must pay such sum whenever assets shall come

28 into his hands, and in case the general guardian has assets which he did not so apply, he shall pay
29 out of his own proper estate any interest that may have accrued in consequence of such
30 failure.Minor's Share. – If a share charged with oweltyis apportioned to a minor, the moneyshall
31 not be payable until the minor becomes 18 years old. If the minor has a guardian of the estate or
32 general guardian, however, the guardian shall pay the money when the guardian receives assets
33 belonging to the minor, other than the share, that may be used for that purpose. If the guardian
34 fails to comply with this subsection, the guardian shall be personally liable for any interest that

35 accrued due to the failure.
36 "§ 46A-52. Partition where shareowners unknown or title disputed; allotment of shares in
37 common.Partition where cotenants unknown or title disputed.
38 If there are any of the tenants in common, or joint tenants, whose names are not known or
39 whose title is in dispute, the share or shares of such persons shall be set off together as one parcel.
40 If, in any partition proceeding, two or more appear as defendants claiming the same share of the

41 premises to be divided, or if any part of the share claimed by the petitioner is disputed by any
42 defendant or defendants, it shall not be necessary to decide on their respective claims before the
43 court shall order the partition or sale to be made, but the partition or sale shall be made, and the
44 controversy between the contesting parties may be afterwards decided either in the same or an
45 independent proceeding. If two or more tenants in common, or joint tenants, by petition or
46 answer, request it, thecommissioners may,byorderof thecourt,allot their several shares to them
47 in common, as one parcel, provided such division shall not be injurious or detrimental to any

48 cotenant or joint tenant.
49 (a) If there are any cotenants whose names are not known or whose title is in dispute, the
50 shares of those cotenants shall be apportioned together as one parcel.

Senate Bill 729-Second Edition Page 9 General Assembly Of North Carolina Session 2019

1 (b) In any partition proceeding, if two or more cotenants appear as respondents claiming
2 the same undivided interest in the real property to be partitioned, or if any part of the undivided
3 interest claimedbythepetitioneris disputedbyanyrespondent, it shall not be necessaryto decide
4 on their respective claims before the court orders an actual partition or partition sale of the
5 property. The controversy between the contesting parties may be afterwards decided either in the
6 same or an independent proceeding.
7 "§ 46A-53. Apportionment of shares in common.

8 When requested by two or more cotenants, the commissioners may, by order of the court,
9 apportion their several shares to them in common, as one parcel, so long as the apportionment is
10 not injurious or detrimental to any cotenant.
11 "§ 46A-54. Dedication of streets.
12 Upon motion of any party or the commissioners appointed to make division, the clerk may
13 authorize the commissioners to propose and report the dedication of such portions of the land as
14 are necessary as a means of access to any share, or is otherwise advisable for public or private

15 highways, streets or alleys, and such proposal shall be acted upon by the clerk as a part of the
16 report and, if approved, shall constitute a dedication. No interest of a minor or other person under
17 disability shall be affected thereby until such dedication is approved by a judge of the superior
18 court.
19 Upon motion of any party or the commissioners, the clerk may authorize the commissioners
20 to propose in their report the dedication of portions of the real property that are necessary as a

21 means of access to any share or that are otherwise advisable for public or private highways,
22 streets, or alleys. The court shall consider the proposal as a part of the report and, if approved by
23 the court, it shall constitute a dedication. Only a dedication approved by a judge of the superior
24 court affects the interest of a minor, an incompetent adult, or another person under a legal
25 disability.
26 "§ 46A-55. Report of commissioners; contents; filing and service; extension; map.
27 (a) The commissioners, within a reasonable time, not exceeding 90 days after the

28 notification of their appointment, shall make a full and ample report of their proceedings, under
29 the hands of any two of them, specifying therein the manner of executing their trust and
30 describing particularly the land or parcels of land divided, and the share allotted to each tenant
31 in severalty, with the sum or sums charged on the more valuable dividends to be paid to those of
32 inferior value. The report shall be filed in the office of the superior court clerk: Provided, that the
33 clerk of the superior court may, in the clerk's discretion, for good cause shown, extend the time
34 for the filing of the report of said commissioners for an additional period not exceeding 60 days.

35 This proviso shall be applicable to proceedings now pending for the partition of real
36 property.Report. – The commissioners shall file a report of their proceedings in the office of the
37 clerk of superior court within 90 days after the last commissioner receives a notice of
38 appointment. The report shall be signed by at least two commissioners and shall describe
39 particularly the real property or parcels of real property apportioned, the share apportioned to
40 each cotenant in severalty, and anyoweltycharged. The clerk of the superior court may, for good

41 cause shown, extend the time for filing the report for an additional period not exceeding 60 days.
42 At the time of filing, the commissioners shall serve a copy of the report on all the parties.
43 (b) The commissioners are authorized to employ the county surveyor or, in his absence
44 or if he be connected with the parties, some other surveyor, who shall make out a map of the
45 premises showing the quantity, courses and distances of each share, which map shall accompany
46 and form a part of the report of the commissioners.Map. – The commissioners may employ a
47 disinterested professional land surveyor to prepare a map of the real property showing the

48 quantity, courses, and distances of each share. If a map is prepared, the map shall accompanyand
49 form a part of the report of the commissioners.
50 "§ 46A-56. Confirmation and impeachment of report.of report; appeal; motion for relief.

Page 10 Senate Bill 729-Second Edition General Assembly Of North Carolina Session 2019

1 (a) If no exception to the report of the commissioners is filed within 10 days, days of
2 service of the report on all the parties, the same shall be confirmed. clerk shall confirm the report.
3 Any party after confirmation may impeach the proceedings and decrees for mistake, fraud or
4 collusion bypetition in the cause: Provided, innocent purchasers for full value and without notice
5 shall not be affected thereby.
6 (b) If an exception to the report of commissioners is filed, the clerk shall do one of the
7 following:

8 (1) Confirm the report;report.
9 (2) Recommit the report for correction or further consideration;consideration.
10 (3) Vacate the report and direct a reappraisal by the same commissioners; orthe
11 same commissioners to reapportion the real property.
12 (4) Vacate the report, discharge the commissioners, and appoint new
13 commissioners to view the premises and make a partition of them.real
14 property and partition it.

15 (c) Appeal from the clerk to superior court of an order of confirmation of the report of
16 commissioners is governed by G.S. 1-301.2 except that the judge may take only the actions
17 specified in subsection (b) of this section and may shall not adjudge a partition of the land
18 property different from that made by the commissioners.
19 (d) After confirmation of the report, any party may seek relief from the order of
20 confirmation for mistake, fraud, or collusion bya motion in the proceeding. This relief, however,

21 shall not affect an innocent purchaser for value and without notice.
22 "§ 46A-57. Report and confirmation enrolled and registered; effect; probate.effect.
23 Such report, when confirmed, together with the decree of confirmation, shall be enrolled and
24 certified to the register of deeds and registered in the office of the county where such real estate
25 is situated, and shall be binding among and between the claimants, their heirs and assigns. It shall
26 not be necessary for the clerk of court to probate the certified papers required to be registered by
27 this section.

28 The report of the commissioners, when confirmed, and the order of confirmation shall be
29 enrolled and certified to the register of deeds and registered in the office of each county where
30 the real property is located. The confirmed report is binding among and between the parties and
31 the parties' heirs and assigns.
32 "§ 46A-58. Clerk to docket owelty charges; no release of land and no lien.owelty.
33 In case owelty of partition is charged in favor of certain parts of said land and against certain
34 other parts, the clerk shall enter on the judgment docket the said owelty charges in like manner

35 as judgments are entered on said docket, persons to whom parts are allotted in favor of which
36 owelty is charged being marked plaintiffs on the judgment docket, and persons to whom parts
37 are allotted against which owelty is charged being marked defendants on said docket; said entry
38 on said docket shall contain the title of the special proceeding in which the land was partitioned,
39 and shall refer to the book and page in which the said special proceeding is recorded; when said
40 owelty charges are paid said entry upon the judgment docket shall be marked satisfied in like

41 manner as judgments are cancelled and marked satisfied; and the clerk shall be entitled to the
42 same fees for entering such judgment of oweltyas he is entitled to for docketing other judgments:
43 Provided, that the docketing of said owelty charges as hereinbefore set out shall not have the
44 effect of releasing the land from the owelty charged in said special proceeding: Provided, any
45 judgment docketed under this section shall not be a lien on any property whatever, except that
46 upon which said owelty is made a specific charge.
47 If the court orders owelty, the clerk shall enter the oweltyon the judgment docket in the same

48 manneras judgments are entered onthedocket.Theclerkshall mark as plaintiffs on thejudgment
49 docket persons whose shares are to be paid owelty, and the clerk shall mark as defendants on the
50 judgment docket persons whose shares are charged with owelty. The entry on the docket shall
51 contain the title of the special proceeding in which the property was partitioned. When owelty is

Senate Bill 729-Second Edition Page 11 General Assembly Of North Carolina Session 2019

1 paid, the entry upon the judgment docket shall be marked satisfied in the same manner as
2 judgments are cancelled and marked satisfied, and the clerk shall be entitled to the same fees for
3 entering this judgment as the clerk is entitled to for docketing other judgments. The docketing of
4 owelty under this section does not release the property from the owelty. Any judgment docketed
5 under this section is not a lien on any property other than the property charged with owelty.
6 "§ 46A-59. Order for possession.
7 (a) An order for possession of real property apportioned pursuant to this Part, in favor of

8 the party to which an apportionment has been made and against any party in possession at the
9 timeofapplication therefor,maybeissuedbythe clerkofthesuperiorcourtifall ofthefollowing
10 apply:
11 (1) No appeal from the order of confirmation of the report of commissioners has
12 been made within the time prescribed under G.S. 1-301.2, or if an appeal has
13 been made, the judge confirmed the report pursuant to G.S. 46A-56(c).
14 (2) The report and confirmation have been duly recorded in the office of the

15 register of deeds pursuant to G.S. 46A-57.
16 (3) Ten days' notice has been given by the party applying for the order for
17 possession to each party remaining in possession at the time application is
18 made. The notice shall not be given until the clerk has confirmed the report of
19 the commissioners pursuant to G.S. 46A-56.
20 (b) An order for possession issued pursuant to this section shall be directed to the sheriff

21 and shall authorize the sheriff to remove all occupants and their personal property from the real
22 property and to put the party to which an apportionment has been made in possession. The order
23 shall be executed in accordance with the procedure for executing a writ or order for possession
24 in a summary ejectment proceeding under G.S. 42-36.2. The party to which an apportionment
25 has been made has the same rights and remedies in connection with the execution of an order for
26 possession and the disposition of personal property following execution as are provided to a
27 landlord under State law, including Chapters 42 and 44A of the General Statutes.

28 "Part 3. Partition Sale.
29 "§ 46A-75. Sale in lieu of actual partition.
30 (a) Subject to G.S. 46-22.1(b), the court shall order a sale of the propertydescribed in the
31 petition, orofanypart,onlyifit finds,byapreponderanceoftheevidence,that an actual partition
32 ofthelandscannotbemadewithoutsubstantialinjurytoanyoftheinterestedparties, afterhaving
33 considered evidence in favor of actual partition and evidence in favor of a sale presented by any
34 oftheinterestedparties.Subject to G.S. 46A-29(b), thecourtshall order asaleofthereal property

35 described in the petition, or of any part of the property, under this Part only if it finds by a
36 preponderance of the evidence that an actual partition of the property pursuant to Part 2 of this
37 Article cannot be made without substantial injury to any of the parties, after having considered
38 evidence in favor of actual partition and evidence in favor of a sale presented by any of the
39 parties. Thepartyseeking asaleofthepropertyhas theburden ofprovingsubstantial injuryunder
40 this section.

41 (b) In determining whether an actual partition would cause "substantial injury"
42 substantial injury to any of the interested parties, the court shall consider all of the following:
43 (1) Whether the fair market value of each cotenant's share in an actual partition
44 of the property would be materially less than the amount each cotenant would
45 receive from the sale of the whole.
46 (2) Whether an actual partition would result in material impairment of any
47 cotenant's rights.

48 (3) Whether charging owelty under G.S. 46A-51 would eliminate or mitigate any
49 substantial injury to any of the parties caused by an actual partition.
50 (b1) The court, in its discretion, shall consider the remedy of owelty where such remedy
51 can aid in making an actual partition occur without substantial injury to the parties.

Page 12 Senate Bill 729-Second Edition General Assembly Of North Carolina Session 2019

1 (c) The court shall make specific findings of fact and conclusions of law supporting an
2 order of sale of the property.If the court orders a partition sale, the court shall make specific
3 findings of fact and conclusions of law supporting the order.
4 (d) The party seeking a sale of the property shall have the burden of proving substantial
5 injury under the provisions of this section.As provided in G.S. 46A-52, if two or more parties
6 claim the same undivided interest in the property, the court is not required to decide the issue
7 before ordering a partition sale of the property.

8 "§ 46A-76. Sale procedure.
9 (a) The procedure for a partition sale shall be the same as is provided in Article 29A of
10 Chapter 1 of the General Statutes, except as provided herein.General. – The procedure for a
11 partition sale is the same as is provided in Article 29A of Chapter 1 of the General Statutes,
12 except as provided in this Part.
13 (b) One Commissioner Sufficient. – In a partition sale, the court is not required to appoint
14 more than one commissioner.

15 (c) No clerk of the superior court shall appoint himself or his assistant or deputy to make
16 sale of any property in any proceeding before him.Persons Not to Be Appointed. – The clerk of
17 the superior court shall not appoint the clerk, an assistant clerk, or a deputy clerk to make a sale
18 of the real property.
19 (d) The commissioners shall certify to the court that at least 20 days prior to sale a copy
20 of the notice of sale was sent by first class mail to the last known address of all petitioners and

21 respondents who previously were served by personal delivery or by registered or certified mail.
22 The commissioners shall also certifyto the court that at least ten days prior to anyresale pursuant
23 to G.S. 46-28.1(e) a copy of the notice of resale was sent by first class mail to the last known
24 address of all parties to the partition proceeding who have filed a written request with the court
25 that they be given notice of any resale. An affidavit from the commissioners that copies of the
26 notice of sale and resale were mailed to all parties entitled to notice in accordance with this
27 section shall satisfy the certification requirement and shall also be deemed prima facie true. If

28 after hearing it is proven that a party seeking to revoke the order of confirmation of a sale or
29 subsequent resale was mailed notice as required by this section prior to the date of the sale or
30 subsequent resale, then that party shall not prevail under the provisions of G.S. 46-28.1(a)(2)a.
31 and b.Additional Requirement; Notice of Public Sale. – If the court orders a public sale, the
32 commissioner shall certify to the court that at least 20 days prior to sale, a copy of the notice of
33 salewas sent byfirst-class mail tothelastknownaddress ofall parties previouslyservedpursuant
34 to G.S. 1A-1, Rule 4(j). An affidavit from the commissioner that copies of the notice of sale were

35 mailed to all parties entitled to notice in accordance with this section satisfies the certification
36 requirement and shall also be deemed prima facie true.
37 "§ 46A-77. Cotenant credit.
38 Any cotenant who enters entering the high bid or offer at any sale of one hundred percent
39 (100%) of the undivided interests in any parcel of real property shall receive a credit for the
40 undivided interest the cotenant already owns therein in the real property and shall receive a

41 corresponding reduction in the amount of the total purchase price owed after deducting the costs
42 and fees associated with the sale and apportioning allocating the costs and fees associated with
43 the sale in accordance with the orders of the court. The high bid or offer shall be for one hundred
44 percent (100%) of the undivided interests in the parcel of real property sold, and the credit and
45 reduction shall be applied at thetimeofthe closing ofthecotenant's purchase ofthereal property.
46 When jointly making the high bid or offer at the sale, two or more cotenants When two or more
47 cotenants jointly make the high bid or offer at the sale, they may receive at the closing an

48 aggregate credit and reduction in the amount of the total purchase price representing the total of
49 such cotenants' their undivided interests in the real property. Any credits and reductions allowed
50 bythissubsectionshallbefurtheradjustedto reflectanycourt-ordered adjustmentstotheshare(s)
51 share of the net sale proceeds of each of the cotenants entering the high bid or offer, including,

Senate Bill 729-Second Edition Page 13 General Assembly Of North Carolina Session 2019

1 but not limited to, equitable adjustments to the share(s) share of the net sales proceeds due to a
2 court finding of the lack of contribution of one or more cotenants to the payment of expenses of
3 the real property.carrying costs or improvements of the real property under G.S. 46A-27.
4 "§ 46A-78. Life tenant as party; valuation of life estate.Partition sale of real property
5 subject to a life estate.
6 In all proceedings for partition of land whereon there is a life estate, the life tenant may join
7 in the proceeding and on a sale the interest on the value of the share of the life tenant shall be

8 received and paid to such life tenant annually; or in lieu of such annual interest, the value of such
9 share during the probable life of such life tenant shall be ascertained and paid out of the proceeds
10 to such life tenant absolutely.
11 If the real property to be partitioned by sale is subject to a life estate, a life tenant who joins
12 intheproceedingshallreceivethevalueofthelifetenant'ssharecalculatedaccordingtomortality
13 tables accepted by the court and paid out of the proceeds to the life tenant. The owners of the
14 remainder or reversionary interest have no interest in this payment to the life tenant.

15 "§ 46A-79. Remainder or reversion sold for partition; outstanding life estate.Partition sale
16 of remainder or reversionary interest of real property.
17 The existence of a life estate in any land shall not be a bar to a sale for partition of the
18 remainder or reversion thereof, and for the purposes of partition the tenants in common or joint
19 tenants shall be deemed seized and possessed as if no life estate existed. But this shall not
20 interfere with the possession of the life tenant during the existence of his estate.

21 The existence of a life estate in real property does not bar a partition sale of the remainder or
22 reversionary interest of the property, and for the purposes of partition, the tenants in common or
23 joint tenants of the remainder or reversionary interest shall be deemed to possess the property as
24 if no life estate existed. The partition shall not, however, interfere with the possession of the life
25 tenant during the existence of the life tenant's estate.
26 "§ 46A-80. Sale of standing timber on partition; timber; valuation of life estate.
27 When two or more persons own, as tenants in common, joint tenants or copartners, a tract of

28 land, either in possession, or in remainder or reversion, subject to a life estate, or where one or
29 more persons own a remainder or reversionary interest in a tract of land, subject to a life estate,
30 then in any such case in which there is standing timber upon any such land, a sale of said timber
31 trees, separate from the land, may be had upon the petition of one or more of said owners, or the
32 life tenant, for partition among the owners thereof, including the life tenant, upon such terms as
33 the court mayorder, and under like proceedings as are now prescribed by law for the sale of land
34 for partition: Provided, that when the land is subject to a life estate, the life tenant shall be made

35 a party to the proceedings, and shall be entitled to receive his or her portion of the net proceeds
36 of sales, to be ascertained under the mortality tables established by law: Provided further, that
37 prior to a judgment allowing a life tenant to sell the timber there must be a finding that the cutting
38 is in keeping with good husbandry and that no substantial injury will be done to the remainder
39 interest.
40 (a) When two or more persons own real property with standing timber, as tenants in

41 common, joint tenants, or partners, one or more of the persons may seek a partition sale of the
42 timber, separate from the real property.
43 (b) If real property with standing timber is subject to a life estate, the life tenant or an
44 owner of the remainder or reversionary interest, whether as a tenant in common, joint tenant,
45 partner, or sole owner, may seek a partition sale of the timber, separate from the real property.
46 The life tenant shall be made a party to the proceeding and is entitled to receive the life tenant's
47 share of the proceeds, to be calculated according to mortality tables accepted by the court.

48 (c) An order allowing a life tenant to sell standing timber requires a finding that the
49 cutting of the timber is in keeping with good husbandry and that no substantial injury will be
50 done to the remainder or reversionary interest.
51 "§ 46A-81. Sale of mineral interests on partition.Sale of oil, gas, or mineral interests.

Page 14 Senate Bill 729-Second Edition General Assembly Of North Carolina Session 2019

1 In case of the partition of mineral interests, in all instances where it is made to appear to the
2 court that it would be for the best interests of the tenants in common, or joint tenants, of such
3 interests to have the same sold, or if actual partition of the same cannot be had without injury to
4 some or all of such tenants (in common), then it is lawful for and the duty of the court to order a
5 sale of such mineral interests and a division of the proceeds as the interests of the parties may
6 appear.
7 In a partition of oil, gas, or mineral interests of real property, when the court determines any

8 of the following, the court shall order a sale of the oil, gas, or mineral interests and allocate the
9 proceeds according to the interests of the tenants in common or joint tenants:
10 (1) It is in the best interest of the cotenants of the oil, gas, or mineral interests to
11 sell the interests.
12 (2) Actual partition of the oil, gas, or mineral interests would cause injuryto some
13 or all of the cotenants of the oil, gas, or mineral interests.
14 "§ 46A-82. Sale of land required for public use on cotenant's petition.Sale of real property

15 required for public purposes on cotenant's petition.
16 When the lands of joint tenants or tenants in common are required for public purposes, one
17 or more of such tenants, or their guardian for them, may file a petition verified by oath, in the
18 superior court of the county where the lands or any part of them lie, setting forth therein that the
19 lands are required for public purposes, and that their interests would be promoted by a sale
20 thereof. Whereupon the court, all proper parties being before it, and the facts alleged in the

21 petition being ascertained to be true, shall order a sale of such lands, or so much thereof as may
22 be necessary. The expenses, fees and costs of this proceeding shall be paid in the discretion of
23 the court. Mediator fees and costs of mediation shall be assessed in accordance with G.S.
24 7A-38.3B.
25 When the real property of tenants in common or joint tenants is required for public purposes,
26 one or more cotenants, or the cotenant's guardian of the estate or general guardian, may file a
27 petition verified by oath in the superior court of the county where the property or any part of the

28 property is located, setting forth in the petition that the property is required for public purposes
29 and that the cotenants' interests would be promoted by a sale of the property. If all necessary
30 parties are before the court and the court finds the facts alleged in the petition to be true, the court
31 shall order a sale of the property, or as much of it as may be necessary. Attorneys' fees shall be
32 assessed in accordance with G.S. 46A-3. Mediator fees and costs of mediation shall be assessed
33 in accordance with G.S. 7A-38.3B. Other costs and expenses shall be assessed in accordance
34 with G.S. 6-21.

35 "§ 46A-83. Petition for revocation of confirmation order.
36 (a) Grounds for Revocation. – Notwithstanding G.S. 46-28 G.S. 46A-76 or any other
37 provision of law, within 15 days of entry of the order confirming the partition sale or of real
38 property, the purchaser or any party to the partition proceeding or the purchaser may petition the
39 court to revoke its order of confirmation and to order the withdrawal of the purchaser's offer to
40 purchase the property upon the following grounds:

41 (1) In the case of a purchaser, a lien remains unsatisfied on the property to be
42 conveyed.
43 (2) In the case of any party to the partition proceeding:proceeding, any of the
44 following:
45 a. Notice of the partition was not served on the petitioner for revocation
46 as required by Rule 4 of the Rules of Civil Procedure; orG.S. 1A-1,
47 Rule 4.

48 b. Notice of the sale was not mailed to the petitioner for revocation as
49 required by G.S. 46-28(b); orG.S. 46A-76(d).
50 c. The amount bid or price offered is inadequate and inequitable and will
51 result in irreparable damage to the owners of the real property.

Senate Bill 729-Second Edition Page 15 General Assembly Of North Carolina Session 2019

1 In no event shall the confirmation order become final or effective during the pendency of a
2 petition under this section. No upset bid shall be permitted after the entry of the confirmation
3 order.
4 (b) Effect of Notice. – A petitioner for revocation shall not prevail under sub-subdivision
5 (a)(2)a. or b. of this section, if the petitioner was mailed notice of the sale in accordance with
6 G.S. 46A-76(d).
7 (c) The party petitioning for revocation shall deliver a copy of the petition to all parties

8 required to be served under Rule 5 of G.S. 1A-1, and the officer or person designated to make
9 such sale in the manner provided for service of process in Rule 4(j) of G.S. 1A-1. The court shall
10 schedule a hearing on the petition within a reasonable time and shall cause a notice of the hearing
11 to be served on the petitioner, the officer or person designated to make such a sale and all parties
12 required to be served under Rule 5 of G.S. 1A-1.Service; Notice of Hearing. – The party
13 petitioning for revocation shall deliver a copy of the petition to all parties required to be served
14 under G.S. 1A-1, Rule 5, and shall serve the officer or person designated to make the sale under

15 G.S. 1A-1, Rule 4(j). The court shall schedule a hearing on the petition within a reasonable time
16 and shall cause a notice of the hearing to be served on the petitioner, the officer or person
17 designated to make the sale, and all parties required to be served under G.S. 1A-1, Rule 5.
18 (d) Petition by Purchaser. – In the case of a petition brought under this section by a
19 purchaser claiming the existence of an unsatisfied lien on the property to be conveyed, if the
20 purchaser proves by a preponderance of the evidence that:all of the following, the court may

21 revoke the order confirming the sale, order the withdrawal of the purchaser's offer, and order the
22 return of any money or security to the purchaser tendered pursuant to the offer:
23 (1) A lien remains unsatisfied on the property to be conveyed; andconveyed.
24 (2) The purchaser has not agreed in writing to assume the lien; andlien.
25 (3) The lien will not be satisfied out of the proceeds of the sale; andsale.
26 (4) Theexistenceofthelien was not disclosedin thenoticeofsaleoftheproperty,
27 the court may revoke the order confirming the sale, order the withdrawal of

28 the purchaser's offer, and order the return of any money or security to the
29 purchaser tendered pursuant to the offer.property.
30 The order of the court in revoking an order of confirmation under this section may shall not
31 be introduced in any other proceeding to establish or deny the existence of a lien.
32 (e) Petition byParty. – In the case of a petition brought pursuant to this section bya party
33 to the partition proceeding, if the court finds by a preponderance of the evidence that the
34 petitioner has proven a case pursuant to sub-subdivision (a)(2)a., b., or c. of this section, the court

35 mayrevokethe order confirmingthesale,orderthe withdrawal of thepurchaser's offer, and order
36 the return of any money or security to the purchaser tendered pursuant to the offer.
37 (f) Resale. – If the court revokes its order of confirmation under this section, the court
38 shall order a resale. The procedure for a resale is the same as is provided for an original public
39 sale under Article 29A of Chapter 1 of the General Statutes.as provided under G.S. 46A-76.
40 "§ 46A-84. Petition for revocation based on inadequate price.

41 In the case of a petition brought pursuant to sub-subdivision (a)(2)c. of this section,
42 G.S. 46A-83(a)(2)c., and when an independent appraisal of the property being sold has not been
43 previously entered into evidence in the action, and upon the request of any party, the court may
44 order an independent appraisal prepared bya real estate appraiser currently licensed bythe North
45 Carolina Appraisal Board and prepared in accordance with the Uniform Standards of
46 Professional Appraisal Practice. The cost of an independent appraisal shall be borne by one or
47 more of the parties requesting the appraisal in such proportions as they may agree. determined

48 by the court. Before ruling on the petition brought pursuant to sub-subdivision (a)(2)c. of this
49 section, G.S. 46A-83(a)(2)c., the court may in its discretion require written evidence from the
50 appraiser that the appraiser has been paid in full for the appraisal. If based on the appraisal and
51 all of the evidence presented, the court finds the amount bid or price offered to be inadequate,

Page 16 Senate Bill 729-Second Edition General Assembly Of North Carolina Session 2019

1 inequitable, and resulting in irreparable damage to the owners, the court may revoke the order
2 confirming the sale, order the withdrawal of the purchaser's high bid or offer, and order the return
3 to such the purchaser of any money or security tendered by the purchaser pursuant to the high
4 bid or offer.
5 "§ 46A-85. Order becoming final; appeal; purchase of property.
6 (a) Order Becoming Final; Appeal. – An order confirming the partition sale of real
7 property becomes final and effective 15 days after entry of the order of confirmation or when the

8 clerk denies a petition for revocation, whichever occurs later. A party may appeal an order
9 confirming the partition of sale of real property within 10 days of the order becoming final and
10 effective.final.
11 (b) Purchase of Property. – After the order of confirmation becomes final and effective,
12 final, the successful bidder may immediately purchase the property.
13 (c) Effect of Deed. – The deed of the officer or person designated to make such the sale
14 shall convey to the purchaser such title and estate in the property as the tenants in common, or

15 joint tenants, cotenants and all other parties to the proceeding had therein.in the property.
16 (d) Sale Proceeds. – At the time that the order of confirmation becomes final, the court
17 shall secure to each tenant in common, or joint tenant, his ratable share in severalty of the
18 proceeds of sale.Upon receipt of the sale proceeds by either the court or the commissioner, the
19 court shall secure to each cotenant the cotenant's ratable share in severalty of the proceeds of
20 sale. If the ratable share due to each cotenant has not yet been determined by the court, the court

21 shall set the matter for hearing on the court's own motion or upon motion of a party or
22 commissioner.
23 "§ 46A-86. Shares to persons unknown or not sui juris secured.Sale proceeds belonging to
24 certain parties.
25 When a sale is made under this Chapter, and any party to the proceedings be an infant, non
26 compos mentis, imprisoned, or beyond the limits of the State, or when the name of any tenant in
27 common is not known, it is the dutyof the court to decree the share of such party, in the proceeds

28 of sale, to be so invested or settled that the same may be secured to such party or his real
29 representative.
30 (a) Minor; Incompetent Adult. – When real property is sold under this Chapter and a
31 party to the proceeding is a minor or an incompetent adult, the court shall take appropriate steps
32 to secure the proceeds for the benefit of the party, including any of the following:
33 (1) Forproceeds up to theallowableamounts in G.S. 7A-111,receive,administer,
34 and disburse the proceeds pursuant to that section.

35 (2) Order the proceeds disbursed to any of the following:
36 a. A guardian of the estate or general guardian under Chapter 35A of the
37 General Statutes.
38 b. An agent under Chapter 32C of the General Statutes.
39 c. In the case of a minor, a custodian under Chapter 33A of the General
40 Statutes.

41 d. A custodial trust under Chapter 33B of the General Statutes.
42 e. A trust under Chapter 36C of the General Statutes.
43 (b) Certain Other Parties. – When a sale is made under this Chapter, the court shall invest
44 or deposit under G.S. 7A-112 and G.S. 7A-112.1 proceeds belonging to the following parties:
45 (1) A party who is imprisoned, if the proceeds cannot be disbursed to, or at the
46 direction of, the party.
47 (2) An unknown or unlocatable cotenant.

48 A party may seek disbursement of these proceeds by filing a motion in the proceeding. If the
49 party shows that the proceeds belong to the party, the court shall order that the proceeds be
50 disbursed to the party.
51 "Article 3.

Senate Bill 729-Second Edition Page 17 General Assembly Of North Carolina Session 2019

1 "Partition of Personal Property.
2 "§ 46A-100. Personal property may be partitioned; commissioners appointed.partitioned.
3 When anypersons entitled as tenants in common, or joint tenants, of personal propertydesire
4 to have a division of the same, they, or either of them, may file a petition in the superior court
5 for that purpose; and the court, if it think the petitioners entitled to relief, shall appoint three
6 disinterested commissioners, who, being first duly sworn, shall proceed within 20 days after
7 notice of their appointment to divide such property as nearly equally as possible among the

8 tenants in common, or joint tenants.
9 A tenant in common or joint tenant of personal property may file a petition in superior court
10 to partition the property.
11 "§ 46A-101. Commissioners appointed; filing and service of report; confirmation; motion
12 for relief.
13 (a) Appointment. – If the court determines that the petitioner is entitled to relief, the court
14 shallappointthreedisinterestedcommissioners,who,beingfirstdulysworn,shallproceedwithin

15 20 days after notice of their appointment to partition the personal property in shares that are as
16 nearly proportionate in value as possible to the interests of the cotenants.
17 (b) The commissioners shall report their proceedings under the hands of anytwo of them,
18 and shall file their report in the office of the clerk of the superior court within five days after the
19 partition was made.Report. – The commissioners shall file a written report of their proceedings
20 in the court, signed by any two of them, within five days after the actual partition. At the time of

21 filing, the commissioners shall serve a copy of the report on all the parties.
22 (c) If no exception to the report of the commissioners making partition is filed within 10
23 days the report shall be confirmed. Any party, after confirmation, shall be allowed to impeach
24 the proceeding for mistake, fraud or collusion, by petition in the cause, but innocent purchasers
25 for full value and without notice shall not be affected thereby.Confirmation. – If no party files an
26 exception to the commissioners' report within 10 days of service of the report on all the parties,
27 the court shall confirm the report.

28 (d) Motion for Relief. – After confirmation of the report, any party may seek relief from
29 the order of confirmation for mistake, fraud, or collusion by a motion in the proceeding. This
30 relief, however, shall not affect an innocent purchaser for value and without notice.
31 "§ 46A-102. Sale of personal property on partition.Partition sale of personal property.
32 If a division of personal property owned by any persons as tenants in common, or joint
33 tenants, cannot be had without injury to some of the parties interested, and a sale thereof is
34 deemed necessary, the court shall order a sale to be made as provided in Article 29A of Chapter

35 1 of the General Statutes.
36 (a) If the court determines that an actual partition of personal property would injure some
37 of the parties and that a partition sale is necessary, the court shall order a sale to be made as
38 provided in Article 29A of Chapter 1 of the General Statutes. In a partition sale, the court is not
39 required to appoint more than one commissioner.
40 (b) G.S. 46A-86 applies to sale proceeds under this section."

41
42 PART II. CONFORMING PROCEDURAL CHANGES
43 SECTION 4. G.S. 1-301.2 reads as rewritten:
44 "§ 1-301.2. Transfer or appeal of special proceedings; exceptions.
45 (a) Applicability. – This section applies to special proceedings heard by the clerk of
46 superior court in the exercise of the judicial powers of that office. If this section conflicts with a
47 specificprovision ofthe General Statutes,thatspecificprovision of theGeneral Statutescontrols.

48 (b) Transfer. – Except as provided in subsections (g) and (h) of this section, when an
49 issue of fact, an equitable defense, or a request for equitable relief is raised in a pleading in a
50 special proceeding or in a pleading or written motion in an adoption proceeding, the clerk shall

Page 18 Senate Bill 729-Second Edition General Assembly Of North Carolina Session 2019

1 transfer the proceeding to the appropriate court. In court, the proceeding is subject to the
2 provisions in the General Statutes and to the rules that applyto actions initiallyfiled in that court.
3 (c) Duty of Judge on Transfer. – Whenever a special proceeding is transferred to a court
4 pursuant to subsection (b) of this section, the judge may hear and determine all matters in
5 controversy in the special proceeding, unless it appears to the judge that justice would be more
6 efficiently administered by the judge's disposing of only the matter leading to the transfer and
7 remanding the special proceeding to the clerk.

8 (d) Clerk to Decide All Issues. – If a special proceeding is not transferred or is remanded
9 to the clerk after an appeal or transfer, the clerk shall decide all matters in controversy to dispose
10 of the proceeding.
11 (e) Appeal of Clerk's Decisions. – Except as provided in G.S. 46-28.1(f), a A party
12 aggrieved by an order or judgment of a clerk that finally disposed of a special proceeding, may,
13 within 10 days of entry of the order or judgment, appeal to the appropriate court for a hearing de
14 novo. Under G.S. 46A-85(a), however, a party may appeal an order confirming the partition sale

15 of real property within 10 days of the order becoming final. Notice of appeal shall be in writing
16 and shall be filed with the clerk. The order or judgment of the clerk remains in effect until it is
17 modified or replaced byan order or judgment of a judge. A judge of the court to which the appeal
18 lies or the clerk may issue a stay of the order or judgment upon the appellant's posting of an
19 appropriate bond set bythe judge or clerk issuing the stay. Any matter previously transferred and
20 determined by the court shall not be relitigated in a hearing de novo under this subsection.

21 (f) Service. – Notwithstanding the service requirement of G.S. 1A-1, Rule 58, orders of
22 the clerk shall be served on other parties only if otherwise required by law.
23 (g) Exception for Incompetency and Foreclosure Proceedings and Proceedings to Permit
24 Sterilization for Medical Necessity. –
25 (1) Proceedings for adjudication of incompetency or restoration of competency
26 under Chapter 35A of the General Statutes, or proceedings to determine
27 whether a guardian may consent to the sterilization of a ward with a mental

28 illness or intellectual disability under G.S. 35A-1245, shall not be transferred
29 even if an issue of fact, an equitable defense, or a request for equitable relief
30 is raised. Appeals from orders entered in these proceedings are governed by
31 Chapter 35A of the General Statutes to the extent that the provisions of that
32 Chapter conflict with this section.
33 (2) Foreclosure proceedings under Article 2A of Chapter 45 of the General
34 Statutes shall not be transferred even if an issue of fact, an equitable defense,

35 or a request for equitable relief is raised. Equitable issues may be raised only
36 as provided in G.S. 45-21.34. Appeals from orders entered in these
37 proceedings are governed by Article 2A of Chapter 45 of the General Statutes
38 to the extent that the provisions of that Article conflict with this section.
39 (h) Exception for Partition Proceedings. – Notwithstanding the provisions of subsection
40 (b) of this section, the issue whether to order the actual partition or the sale in lieu of partition of

41 real property that is the subject of a partition proceeding shall not be transferred and shall be
42 determined by the clerk. The clerk's order determining this issue, though not a final order, may
43 be appealed pursuant to subsection (e) of this section."
44 SECTION 5. G.S. 1-394 reads as rewritten:
45 "§ 1-394. Contested special proceedings; commencement; summons.
46 Special proceedings against adverse parties shall be commenced as is prescribed for civil
47 actions. The summons shall notify the defendant or defendants to appear and answer the

48 complaint, or petition, of the plaintiff within 10 days after its service upon the defendant or
49 defendants, and must contain a notice stating in substance that if the defendant or defendants fail
50 to answer the complaint, or petition, within the time specified, plaintiff will apply to the court for
51 therelief demanded in thecomplaint,orpetition.Thesummons must runin thenameoftheState,

Senate Bill 729-Second Edition Page 19 General Assembly Of North Carolina Session 2019

1 and be dated and signed by the clerk, assistant clerk or deputy clerk of the superior court having
2 jurisdiction in the special proceeding, and be directed to the defendant or defendants, and be
3 delivered for service to some proper person, as defined by Rule 4(a) of the Rules of Civil
4 Procedure. The clerk shall indicate on the summons by appropriate words that the summons is
5 issued in a special proceeding and not in a civil action. The manner of service shall be as is
6 prescribed for summons in civil actions by Rule 4 of the Rules of Civil Procedure: Provided, in
7 partition proceedings under Chapter 46 Chapter 46A of the General Statutes or where the

8 defendant is an agency of the federal government, or an agency of the State, or a local
9 government, or an agency of a local government, the time for filing answer or other plea shall be
10 within 30 days after the date of service of summons or after the final determination of anymotion
11 required to be made prior to the filing of an answer."
12 SECTION 6. G.S. 1-502 reads as rewritten:
13 "§ 1-502. In what cases appointed.
14 A receiver may be appointed –

15 …
16 (6) In cases involving partition of real property, pursuant to G.S.
17 46-3.1.G.S. 46A-28.
18 The provisions of G.S. 1-507.1 through 1-507.11 are applicable, as near as may be, to
19 receivers appointed hereunder."
20 SECTION 7. G.S. 6-21 reads as rewritten:

21 "§ 6-21. Costs allowed either party or apportioned in discretion of court.
22 Costs in the following matters shall be taxed against either party, or apportioned among the
23 parties, in the discretion of the court:
24 …
25 (7) All costs and expenses incurred in special proceedings for the division or sale
26 of either real estate or personal property under the Chapter entitled
27 Partition.partition of real or personal property under Chapter 46A of the

28 General Statutes, except that attorneys' fees shall be assessed in accordance
29 with G.S. 46A-3.
30 …
31 The word "costs" as the same appears and is used in this section shall be construed to include
32 reasonableattorneys'fees in such amounts as thecourtshall in its discretion determine andallow:
33 provided that attorneys' fees in actions for alimony shall not be included in the costs as provided
34 herein, but shall be determined and provided for in accordance with G.S. 50-16.4."

35
36 PART III. OTHER CONFORMING CHANGES
37 SECTION 8. G.S. 1-394 reads as rewritten:
38 "§ 1-394. Contested special proceedings; commencement; summons.
39 Special proceedings against adverse parties shall be commenced as is prescribed for civil
40 actions. The summons shall notify the defendant or defendants to appear and answer the

41 complaint, or petition, complaint or petition of the plaintiff within 10 days after its service upon
42 the defendant or defendants, and must contain a notice stating in substance that if the defendant
43 or defendants fail to answer the complaint, complaint or petition, within the time specified, the
44 plaintiff will apply to the court for the relief demanded in the complaint, complaint or petition.
45 The summons must run in the name of the State, and be dated and signed by the clerk, assistant
46 clerk clerk, or deputy clerk of the superior court having jurisdiction in the special proceeding,
47 and be directed to the defendant or defendants, and be delivered for service to some proper

48 person, as defined by Rule 4(a) of the Rules of Civil Procedure. G.S. 1A-1, Rule 4(a). The clerk
49 shall indicate on the summons by appropriate words that the summons is issued in a special
50 proceeding and not in a civil action. The manner of service shall be as is as prescribed for
51 summons in civil actions byRule 4 of the Rules of Civil Procedure: Provided, in G.S. 1A-1, Rule

Page 20 Senate Bill 729-Second Edition General Assembly Of North Carolina Session 2019

1 4. In partition proceedings under Chapter 46A of the General Statutes or where the defendant is
2 an agency of the federal government, or an agency of the State, or a local government, or an
3 agency of a local government, the time for filing an answer or other plea shall be pleading is
4 within 30 days after the date of service of summons or after the final determination of anymotion
5 required to be made prior to the filing of an answer."
6 SECTION 9. G.S. 1-502 reads as rewritten:
7 "§ 1-502. In what cases appointed.

8 A receiver may be appointed –appointed in any of the following cases:
9 (1) Before judgment, on the application of either party, when he the party
10 establishes an apparent right to property which that is the subject of the action
11 and in the possession of an adverse party, and the property or its rents and
12 profits are in danger of being lost, lost or materially injured or impaired;
13 except a receiver, however, shall not be appointed in cases where judgment
14 upon failure to answer may be had on application to the court.

15 (2) After judgment, to carry the judgment into effect.
16 (3) After judgment, to dispose of the property according to the judgment, or to
17 preserve it during the pendency of an appeal, or when an execution has been
18 returned unsatisfied, and the judgment debtor refuses to applyhis the property
19 in satisfaction of the judgment.
20 (4) In cases provided in G.S. 1-507.1 and in like similar cases, of the regarding

21 property within this State of foreign corporations.
22 (5) In cases wherein where restitution is sought for violations of G.S. 75-1.1.
23 (6) In cases involving partition of real property, pursuant to G.S. 46A-28.
24 The provisions of G.S. 1-507.1 through 1-507.11 are applicable, as near as may be, to
25 receivers appointed hereunder.Part 2 of Article 38 of Chapter 1 of the General Statutes apply to
26 the appointment of a receiver of a corporation under this section."
27 SECTION 10. G.S. 6-21 reads as rewritten:

28 "§ 6-21. Costs allowed either party or apportioned in discretion of court.
29 Costs in the following matters shall be taxed against either party, or apportioned among the
30 parties, in the discretion of the court:
31 (1) Application for years' support, for surviving spouse or children.
32 (2) Caveats to wills and any action or proceeding which that may require the
33 construction of any will or trust agreement, or fix the rights and duties of
34 parties thereunder; provided, that in under any will or trust agreement. In any

35 caveat proceeding under this subdivision, the court shall allow attorneys' fees
36 for the attorneys of the caveators only if it finds that the proceeding has
37 substantial merit.
38 (3) Habeas corpus; and the corpus. The court shall direct what which officer shall
39 tax the costs thereof.of the proceeding.
40 (4) In actions for divorce or alimony; and the alimony. The court may may, both

41 before and after judgment judgment, make such any order respecting the
42 payment of such costs as may be incurred by either spouse from the sole and
43 separate estate of either spouse, as may be just.
44 (5) Application for the establishment, alteration alteration, or discontinuance of a
45 public road, cartway cartway, or ferry. The board of county commissioners
46 may order the costs incurred before them paid in their discretion.in its
47 discretion may assess the costs incurred before the board.

48 (6) The compensation of referees and commissioners to take depositions.
49 (7) All costs and expenses incurred in special proceedings for the partition of real
50 or personal property under Chapter 46A of the General Statutes, except that
51 attorneys' fees shall be assessed in accordance with G.S. 46A-3.

Senate Bill 729-Second Edition Page 21 General Assembly Of North Carolina Session 2019

1 (8) In all proceedings under the Chapter entitled Drainage, Chapter 156 of the
2 General Statutes relating to drainage, except as therein otherwise
3 provided.provided in that Chapter.
4 (9) In proceedings for reallotment of homestead for increase in value, as provided
5 in the Chapter, Civil Procedure.
6 (10) In proceedings under Article 3 of Chapter 49 of theGeneral Statutes regarding
7 children born out of wedlock.

8 (11) In custody proceedings under Chapter 50A of the General Statutes.
9 (12) In actions brought for misappropriation of a trade secret under Article 24 of
10 Chapter 66 of the General Statutes.
11 The word "costs" as the same appears and is used in this section shall be construed to include
12 includes reasonable attorneys' fees in such whatever amounts as the court shall in its discretion
13 determine determines and allow: provided that attorneys' allows. Attorneys' fees in actions for
14 alimony alimony, however, shall not be included in the costs as provided herein, in this section

15 but shall be determined and provided for in accordance with G.S. 50-16.4."
16 SECTION 11. G.S. 11-11 reads as rewritten:
17 "§ 11-11. Oaths of sundry various persons; forms.
18 The oaths of office to be taken by the several persons hereafter named persons listed in this
19 section shall be in the words following the names of said the persons respectively, in all cases
20 after taking the separate oath required by Article VI, Section 7 of the Constitution of North

21 Carolina:
22 …
23 Commissioners Dividing and Allotting Apportioning Real Estate
24
25 You and each of you swear (or affirm) that, in the partition of the real estate now about to be
26 made by you, you will do equal and impartial justice among the several claimants, according to
27 their several rights, and agreeably to law; so help you, God.

28 …."
29 SECTION 12. G.S. 31A-6 reads as rewritten:
30 "§ 31A-6. Survivorship property.
31 (a) Where the slayer and the decedent hold property with right of survivorship as joint
32 tenants, joint owners, joint obligees obligees, or otherwise, the following apply:
33 (1) The decedent's share passes immediately upon the decedent's death to the
34 decedent's estate.

35 (2) The slayer's share shall be held by the slayer for life and at the slayer's death
36 shall pass to the decedent's estate.
37 (b) Where three or more persons, including the slayer and the decedent, hold property
38 with right of survivorship as joint tenants, joint owners, joint obligees obligees, or otherwise, the
39 following apply:
40 (1) The decedent's share is converted effective upon the decedent's death to that

41 of a tenant in common and passes to the decedent's estate.
42 (2) Theremaining persons, includingtheslayer,continueto hold their shares with
43 right of survivorship.
44 (3) If the slayer becomes the final survivor, upon the slayer's death, the slayer's
45 share, which includes the other shares that passed to the slayer as the final
46 survivor, shall pass to the decedent's estate.
47 (c) During the slayer's lifetime, the slayer shall have has the right to the income from the

48 slayer's share, subject to the rights of the slayer's creditors.
49 (d) Nothing in this section prohibits a partitioning of the property pursuant to Chapter 46
50 Chapter 46A of the General Statutes or severing the joint tenancy in any manner provided by

Page 22 Senate Bill 729-Second Edition General Assembly Of North Carolina Session 2019

1 law. Any share taken by the slayer by reason of partition or severance shall be is subject to
2 subdivision (3) of subsection (b) of this section."
3 SECTION 13. G.S. 39-13.5 reads as rewritten:
4 "§ 39-13.5. Creation of tenancy by entirety in actual partition of real property.
5 When either a husband or a wife owns an undivided interest in real property as a tenant in
6 common with some person or persons other than his or her spouse and there occurs an actual
7 partition of the property, a tenancy by the entirety may be created in the husband or wife who

8 owned the undivided interest and his orherspouse in themannerhereinafter provided:as follows:
9 (1) In a division by cross-deed or deeds, deeds between or among the tenants in
10 common provided that the common. The intent of the tenant in common to
11 create a tenancy by the entirety with his or her spouse in this exchange of
12 deeds must be clearlystated in the granting clause of the deed or deeds to such
13 the tenant in common and his or her spouse, and further provided that the deed
14 or deeds to such the tenant in common and his or her spouse is must be signed

15 bysuchthetenantincommonandismustbeacknowledgedbeforeacertifying
16 officer in accordance with G.S. 52-10;G.S. 52-10.
17 (2) In a judicial proceeding for actual partition. In such the proceeding, both
18 spouses have the right to become parties to the proceeding and to have their
19 pleadings state that the intent of the tenant in common is to create a tenancy
20 bythe entiretywith his or herspouse. Theorderof partition shall must provide

21 that the real property assigned apportioned to such the tenant in common and
22 his or her spouse shall be owned by them as tenants by the entirety."
23 SECTION 14. Article 1 of Chapter 41 of the General Statutes is amended by adding
24 a new section to read:
25 "§ 41-11.2. Sale of standing timber; life estate.
26 If real property with standing timber is subject to a life estate, the life tenant or owner of the
27 remainder or reversionary interest may initiate a proceeding under Chapter 46A of the General

28 Statutes to sell the timber, separate from the real property, pursuant to G.S. 46A-80."
29 SECTION 15. G.S. 93A-43 reads as rewritten:
30 "§ 93A-43. Partition.
31 When a time share is owned by two or more persons as tenants in common or as joint tenants
32 tenants, either may seek a partition by sale of that interest under Chapter 46A of the General
33 Statutes, but no purchaser of a time share may shall maintain an action for partition by sale or in
34 kind a proceeding for partition, whether by actual partition or by partition sale, of the unit in

35 which such the time share is held."
36 SECTION 16. G.S. 136-96 reads as rewritten:
37 "§ 136-96. Road or street not used within 15 years after dedication deemed abandoned;
38 declaration ofwithdrawalrecorded;jointtenantsortenantsin common;defunct
39 corporations.
40 (a) Every strip, piece, or parcel of land which shall have that has been at any time

41 dedicated to public use as a road, highway, street, avenue, or for any other purpose whatsoever,
42 by a deed, grant, map, plat, or other means, which shall not have and that has not been actually
43 opened and used by the public within 15 years from and after the dedication thereof, shall be
44 thereby after its dedication is conclusively presumed to have been abandoned by the public for
45 the purposes for which same shall have been it was dedicated; and no person shall have anyright,
46 right or cause of action thereafter, thereafter to enforce any public or private easement therein,
47 except where such dedication was made less than 20 years prior to April 28, 1953, such right

48 may be asserted within one year from and after April 28, 1953; provided, that no in the land.
49 (b) Notwithstanding subsection (a) of this section, no abandonment of any such public or
50 private right or easement shall be presumed until the dedicator or some one or more of those a
51 person claiming under him shall file and cause the dedicator files or causes to be recorded in the

Senate Bill 729-Second Edition Page 23 General Assembly Of North Carolina Session 2019

1 register's office of the county where such the land lies a declaration withdrawing such the strip,
2 piece piece, or parcel of land from the public or private use to which it shall have theretofore
3 been dedicated in the manner aforesaid; provided further, that where was dedicated.
4 (c) When the fee simple title is vested in tenants in common or joint tenants of any land
5 embraced within the boundaries of anysuch a road, highway, street, avenue avenue, or other land
6 dedicated for any public purpose whatsoever, as described in this section, any one or more of
7 such tenants, the cotenants, on his own or their the cotenant's behalf and on the behalf of the

8 others of such tenants, other cotenants, may execute and cause to be registered in the office of
9 the register of deeds of the county where such the land is situated the declaration of withdrawal
10 provided for in this section, and, under Chapter 46 of the General Statutes of North Carolina,
11 entitled "Partition," and Chapter 1, Article 29A of the General Statutes of North Carolina, known
12 as the "Judicial Sales Act," section. Under Chapter 46A (Partition) of the General Statutes and
13 Article 29A (Judicial Sales) of Chapter 1 of the General Statutes, and on petition of any one or
14 more of such tenants such land the cotenants, the land thereafter may be partitioned by sale only

15 as between or among such tenants, and the cotenants, irrespective of who may be in actual
16 possession of such land, provided further, that in such partition proceedings any such tenants in
17 common or joint tenants the land. In the partition proceeding, any cotenant may object to such
18 the withdrawal certificate and the court shall thereupon order the same certificate cancelled of
19 record;record.
20 (d) that where When any corporation has dedicated any strip, piece piece, or parcel of

21 land in the manner herein set out, set out in this section, and said the dedicating corporation is
22 not now no longer in existence, it shall be conclusively presumed that the said corporation has
23 the corporation is conclusively presumed to have no further right, title title, or interest in said
24 strip, piece, or parcel of the land, regardless of the provisions of conveyances from said the
25 corporation, or those holding under said the corporation, retaining title and interest in said strip,
26 piece, or parcel of land so dedicated; the the land. The right, title title, and interest in said strip,
27 piece, or parcel of the land shall be is conclusively presumed to be vested in those persons, firms

28 or corporations persons owning lots or parcels of land adjacent thereto, to it, subject to the
29 provisions set out herein before in of this section.
30 (e) The provisions of this section shall have no application in any case This section does
31 not apply in any of the following circumstances:
32 (1) where When the continued use of any strip of land dedicated for street or
33 highway purposes shall be is necessary to afford convenient ingress or egress
34 to any lot or parcel of land sold and conveyed by the dedicator of such the

35 street or highway. This section shall apply to dedications made after as well
36 as before April 28, 1953.
37 (2) The provisions of this section shall not apply when When the public
38 dedication is part of a future street shown on the street plan adopted pursuant
39 to G.S. 136-66.2. Upon request, a city shall adopt a resolution indicating that
40 the dedication described in the proposed declaration of withdrawal is or is not

41 part of the street plan adopted under G.S. 136-66.2. This resolution shall be
42 attached to the declaration of withdrawal and shall be registered in the office
43 of the register of deeds of the county where the land is situated."
44
45 PART IV. TECHNICAL, CONFORMING, AND MODERNIZING AMENDMENTS TO
46 THE ELECTIVE LIFE ESTATE STATUTE
47 SECTION 17. G.S. 29-30 reads as rewritten:

48 "§ 29-30. Election of surviving spousetotakelifeinterest in lieu of intestateshareprovided.
49 (a) In Except as provided in this subsection, in lieu of the intestate share provided in
50 G.S. 29-14 or G.S. 29-21, or of the elective share provided in G.S. 30-3.1, the surviving spouse
51 of an intestate or the surviving spouse who has petitioned for an elective share shall be is entitled

Page 24 Senate Bill 729-Second Edition General Assembly Of North Carolina Session 2019

1 to take as the surviving spouse's intestate share or elective share a life estate in one third in value
2 of all the real estate of which the deceased spouse was seised and possessed of an estate of
3 inheritance at any time during coverture, except that real estate as to which the surviving
4 spouse:coverture. The surviving spouse is not entitled to take a life estate in any of the following
5 circumstances:
6 (1) Has The surviving spouse has waived the surviving spouse's rights by joining
7 with the other spouse in a conveyance thereof, orof the real estate.

8 (1a) The surviving spouse has waived the right to take a life estate in lieu of an
9 intestate or elective share by an express written waiver.
10 (2) Has released or quitclaimed The surviving spouse has waived, released, or
11 conveyed the surviving spouse's interest therein in the real estate in
12 accordance with G.S. 52-10, orG.S. 52-10.
13 (3) Was The surviving spouse was not required by law to join in a conveyance
14 thereof of the real estate in order to bar the elective life estate, orestate.

15 (3a) The surviving spouse has executed a written declaration permitting the
16 deceased spouse to convey or encumber the real estate without the consent or
17 joinder of the surviving spouse.
18 (3b) The real estate in which the deceased spouse had an interest was either
19 apportioned to or sold to another person in a partition proceeding initiated
20 before the deceased spouse's death.

21 (4) Is The surviving spouse is otherwise not legally entitled to the election
22 provided in this section.
23 (b) The surviving spouse may elect to take a life estate in the usual dwelling house
24 occupied by the surviving spouse at the time of the death of the deceased spouse if such the
25 dwelling house were was owned by the deceased spouse at the time of the deceased spouse's
26 death, together with the outbuildings, improvements and easements thereunto belonging or
27 appertaining, and lands upon which situated and reasonably necessary to the use and enjoyment

28 thereof, as well as a fee simple ownership in the household furnishings therein, despite the fact
29 that a life estate therein might exceed the fractional limitation provided for in subsection (a) of
30 this section. If the value of a life estate in the dwelling house is less than the value of a life estate
31 in one-third in value of all the real estate, the surviving spouse may elect to take a life estate in
32 the dwelling and a life estate in such other real estate as to make the aggregate life estate of the
33 surviving spouse equal to a life estate in one-third in value of all the real estate.
34 (c) The election provided for in subsection (a) of this section shall be made by the filing

35 of a petition in accordance with Article 2 of Chapter 28A of the General Statutes (i) with the
36 clerk of the superior court of the county in which the administration of the estate is pending, or,
37 pending or (ii) if no administration is pending, then with the clerk of the superior court of any
38 countyin which the administration of the estate could be commenced. commenced, together with
39 the recording of a notice indicating the county and file number of the clerk's filing with the
40 register of deeds in every county where real property to be claimed under the filing is located.

41 The election shall be made prior to the shorter of the following applicable periods:
42 (1) In case of testacy, the shorter of (i) within 12 months of the date of death of
43 the deceased spouse if letters testamentary are not issued within that period,
44 or (ii) within one month after the expiration of the time limit for filing a claim
45 for elective share if letters have been issued.
46 (2) In case of intestacy, the shorter of (i) within 12 months after the date of death
47 of the deceased spouse if letters of administration are not issued within that

48 period, or (ii) within one month after the expiration of the time limit for filing
49 claims against the estate, if letters have been issued.
50 (3) Repealed by Session Laws 2011-344, s. 5, effective January 1, 2012.

Senate Bill 729-Second Edition Page 25 General Assembly Of North Carolina Session 2019

1 (4) If litigation that affects the share of the surviving spouse in the estate is
2 pending, including a pending petition for determination of an elective share,
3 then within such reasonable time as may be allowed by written order of the
4 clerk of the superior court.
5 (5) Nothing in this subsection shall extend extends the period of time for a surviving
6 spouse to petition for an elective share under Article 1A of Chapter 30 of the General Statutes.
7 (c1) The petition shall:shall do all of the following:

8 (1) Be directed to the clerk with whom filed;filed.
9 (2) State that the surviving spouse making the same petition elects to take under
10 this section rather than under the provisions of G.S. 29-14, 29-21, or 30-3.1,
11 as applicable; applicable.
12 (3) Set forth thenamesofallheirs,devisees, personal representatives and all other
13 persons in possession of or claiming an estate or an interest in the property
14 described in subsection (a); and (a) of this section.

15 (4) Request the allotment of the life estate provided for in subsection (a).(a) of
16 this section.
17 (c2) The petition may be filed in person, or by attorney authorized in a writing executed
18 and duly acknowledged by the surviving spouse and attested by at least one witness. If the
19 survivingspouseisaminororanincompetent,thepetitionmaybeexecutedandfiledbyageneral
20 guardian or by the guardian of the person or estate of the minor or incompetent spouse. If the

21 minor or incompetent spouse has no guardian, the petition may be executed and filed by a
22 guardian ad litem appointed by the clerk. The petition, whether in person or by attorney, shall be
23 filed as a record of the court, and a summons together with a copy of the petition shall be served
24 upon each of the interested persons named in the petition, in accordance with G.S. 1A-1, Rule 4.
25 (d) In case of election to take a life estate in lieu of an intestate share or elective share, as
26 provided in either G.S. 29-14, 29-21, or 30-3.3(a), 30-3.1, the clerk of superior court, with whom
27 the petition has been filed, shall summon and appoint a jury of three disinterested persons who

28 being first duly sworn shall promptly allot and set apart to the surviving spouse the life estate
29 provided for in subsection (a) of this section and make a final report of such this action to the
30 clerk.
31 (e) The final report shall be filed by the jury not more than 60 days after the summoning
32 and appointment thereof, shall be signed by all jurors, and shall describe by metes and bounds
33 the real estate in which the surviving spouse shall have been allotted and set aside a life estate. It
34 shall be filed as a record of court and a certified copy thereof shall be filed and recorded in the

35 officeoftheregisterofdeedsofeachcountyinwhichanypartoftherealpropertyofthedeceased
36 spouse, affected by the allotment, is located.
37 (f) In the election and procedure to have the life estate allotted and set apart provided for
38 in this section, the rules of procedure relating to partition proceedings under Chapter 46 of the
39 General Statutes shall apply except insofar as the same rules would be inconsistent with the
40 provisions of this section. A determination of the life estate under this section may be appealed

41 in accordance with G.S. 1-301.3.
42 (g) Neither the household furnishings in the dwelling house nor the life estates taken by
43 election under this section shall be are subject to the payment of debts due from the estate of the
44 deceased spouse, except those debts secured by such property as follows:
45 (1) By a mortgage or deed of trust in which the surviving spouse has waived the
46 surviving spouse's rights by joining with the other spouse in the making
47 thereof; orthereof.

48 (2) By a purchase money mortgage or deed of trust, trust given by the deceased
49 spouseto securealoan,theproceeds of whichwereusedto payall oraportion
50 of the purchase price of the encumbered real property, regardless of whether
51 the secured party is the seller of the real property or a third-party lender, or by

Page 26 Senate Bill 729-Second Edition General Assembly Of North Carolina Session 2019

1 a conditional sales contract of personal property in which title is retained by
2 the vendor, made prior to or during the marriage; ormarriage.
3 (3) By a mortgage or deed of trust made prior to the marriage; ormarriage.
4 (4) By a mortgage or deed of trust constituting a lien on the property at the time
5 of its acquisition by the deceased spouse either before or during the marriage.
6 (5) By a mortgage or deed of trust on property with respect to which the elective
7 life estate provided for in this section does not apply as provided in subsection

8 (a) of this section.
9 (h) If no election is made in the manner and within the time provided for in subsection
10 (c) of this section, the surviving spouse shall be conclusively deemed to have waived the
11 surviving spouse's right to elect to take under the provisions of this section, and any interest
12 which the surviving spouse may have had in the real estate of the deceased spouse by virtue of
13 this section shall terminate."
14

15 PART V. EFFECTIVE DATE
16 SECTION 18. This act becomes effective October 1, 2020. Parts I and II of this act
17 apply to partition proceedings commenced on or after that date.

Senate Bill 729-Second Edition Page 27