Partitioning is a division in real or personal property between co-owners. This typically occurs when property is inherited or passed down to heirs. There are two types of partitioning: Partition in Kind and Partition by Sale. These are described in Chapter 46 of the North Carolina General Statutes.

Partition in Kind (also known as Actual Partition) occurs simply when the property is divided, equitably and fairly, between the multiple owners. Each co-owner will own a certain percentage of the property. Courts tend to favor this approach because it does not require someone to sell their property against their will.

Partition by Sale occurs on two occasions. First, a Partition by Sale could occur if the property at issue cannot physically (or equitably) be divided among the co-owners. A Partition by Sale can also occur when a Partition in Kind could not be made without substantial injury to any of the interested parties. This means that, if dividing the property among the co-owners would substantially injure any or all of the co-owners, the court will order a sale of the entire property and the proceeds from the sale will be divided up among the co-owners and distributed accordingly. When determining what constitutes “substantial injury,” according to North Carolina General Statute §46-22, the court will look at the following issues:

  • Whether the fair market value of each co-owner’s share of the actual property would be materially less than the amount each co-owner would receive from a sale of the property as a whole.
  • Whether dividing the property through Partition in Kind would result in material impairment of any co-owner’s rights.

If you are the party seeking a Partition by Sale rather than a Partition in Kind, you have the burden of proving that substantial injury would otherwise occur.  It is generally frowned upon to compel someone to sell his or her property, which is why Partition in Kind is the most favored and most often route taken. However, if property is inherited or passed down by law, and co-owners are unable to agree on certain things, Partition by Sale allows a way out.  Either way, please contact us for a consult with a competent attorney at King Law Offices to discuss your specific situation and options.

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