AN ACT TO MODERNIZE THE STATUTES ON PARTITION OF PROPERTY AND TO MAKE TECHNICAL, CONFORMING, AND MODERNIZING AMENDMENTS TO THE ELECTIVE LIFE ESTATE STATUTE, AS RECOMMENDED BY THE GENERAL STATUTES COMMISSION.
Enacts new GS Chapter 46A, Partition, with three Articles organized as provided. Recodifies specified statutes of GS Chapter 46 regarding partition into new GS Chapter 46A, as identified. Adds new provisions and modifies recodified provisions as they appear in new GS Chapter 46, as follows, and modernizes language throughout.
Requires partitions of property under the Chapter to be by special proceeding pursuant to the procedure set out in Subchapter XII of GS Chapter 1, except as modified by the Chapter.
Adds a new requirement for the court to allocate among all cotenants of property subject to a partition proceeding, in proportion to each cotenant's property interest, reasonable attorneys' fees incurred by any cotenant for the common benefit of all cotenants, unless a cotenant shows that doing so would be inequitable. Excludes attorneys' fees incurred in disputing the method of partition or the division of partition proceeds; instead, provides for those attorneys' fees incurred to be allocated by the court among cotenants aligned on that issue, according to property interest. Additionally authorizes the court to allocate other attorneys' fees among the parties.
Concerning venue, requires a petitioner that commences a proceeding for property located in more than one county in one of the counties in which part of the property is located, to file notice of lis pendens in each of the other counties in which the property is located.
Concerning petition by a cotenant or personal representative, requires a petitioner to serve and join all tenants in common and joint tenants of the proprty. Allows the petitioner to also serve any other person with interest in the property, any lessee of the property, and any holder of a lien, mortgage, or deed on the property. Does not require service or joinder of spouses of cotenants unless the spouse is also a cotenant.
Concerning unknown or unlocatable parties, requires the court to authorize service by publication under GS 1A-1, Rule 4, if at filing or subsequently thereafter, the petitioner shows that the petitioner cannot ascertain, after due diligence, the name or location of a person the petitioner is required or chooses to serve (previously, authorized service by publication and limited the requirement to persons not unknown or unlocatable at the time of filing). Now requires the court to appoint a guardian ad litem under GS 1A-1, Rule 17, to represent the any unknown or unlocatable person (previously, simply required appointment of a disinterested person).
Expands the provisions concerning the distinction between surface ownership and mineral interests to include title to oil and gas as distinct interests from surface ownership, similar to mineral interests.
Amends the provisions concerning the partition of real property subject to a contingent future interest, to require that all of the following parties are represented by an appointed guardian ad litem: unborn individuals (currently included in existing law); parties not in being; parties who are minors or incompetent adults and who do not have a guardian of the estate or general guardian; and unknown or unlocatable parties.
Specifies that partition must be done by one of the following methods: (1) actual partition; (2) partition by sale; (3) actual partition of part of the property and partition sale of the remaining part; or (4) partition of part of the property by actual partition or by partition sale, with the remainder held in cotenancy. Adds a new provision prohibiting ordering continued cotenancy over a cotenant's objection.
Enacts a new statute that expressly establishes the right of a cotenant to contribution from the other cotenants for payment of the real property's carrying costs, as defined, and for the lesser of (1) the value added by improvements as of the proceeding's commencement, or (2) the actual cost of the improvements. Provides for the procedure for asserting this right. Establishes that a cotenant's right to contribution for property taxes is limited to the amount of property taxes paid by the cotenant during the 10 years preceding the filing, plus interest at the legal rate set in GS 24-1. Specifies that the new provisions do not affect the right of cotenants outside a real property partition proceeding initiated under the Chapter.
Adds to the authorized court orders before final determination of a proceeding to include orders relating to access to the property for the purpose of inspecting, surveying, appraising, or selling the property. Adds a new requirement to mandate that the party applying to the court for such orders before a final determination must serve a copy of the application on all other parties and any other person the court may require. Provides procedure for a hearing on the application within 10 days of service a person filed a response in opposition; otherwise, allows for a decision without a hearing.
Concerning mediation, eliminates language concerning a list of certified mediators available through the clerk or the Administrative Office of the Courts. Further, now allows for a party to move for the court to order mediation before considering whether to order a sale. No longer allows a clerk to order mediation.
Regarding the appointment of commissioners to divide and apportion real estate, requires the commissioners to be sworn according to GS Chapter 11 (was, sworn by the magistrate, the sheriff or deputy, or any other authorized person, to do justice among the tenants in comment according to their best skill and ability). Authorizes the court to remove a commissioner and appoint a new commissioner when any commissioner unreasonably delays or neglects to perform their duties. No longer provides for contempt liability and a $50 civil penalty.
Adds a new provision to allow for commissioners to adjust the shares or owelty charged on the shared to account for a court order for contribution or any other court order, as they find necessary to make an equitable partition. Provides that owelty bears interest at the legal rate under GS 24-1 until paid.
Regarding dedication of streets, now expressly includes interests of an incompetent adult which cannot be affected until a dedication is approved by a superior court judge.
Requires the commissioners to serve a copy of their report filed in the office of the superior court clerk on all parties. Authorizes the commissioners to employ a disinterested surveyor to prepare a map of the real property (previously, authorized to use the county surveyor or another surveyor if he or she is absent or connected with the parties).
Requires the clerk to confirm the report of the commissioners within 10 days of service of the report on all the parties (was, within 10 days of the report's filing). Changes terminology regarding impeachment of the proceedings and decrees for mistake, fraud, or collusion, to now provide for relief from the order of confirmation for the same reasons.
Now requires the confirmed commissioners' report and the order of confirmation to be enrolled and certified to the register of deeds and registered in the office of each county where the real property is located (was, in the office where the real estate is situated). Removes provisions concerning probate.
Enacts a new statute authorizing the clerk of superior court to issue an order for possession of real property apportioned under Article 2, in favor of the party to which an apportionment has been made and against any party in possession at the time of application, if three conditions are met: (1) that no appeal from the order of confirmation has been made or a judge has confirmed the report; (2) the report and confirmation have been duly recorded; and (3) 10 days' notice has been given to the party applying for the order of possession to each party remaining in possession at the time of application. Details the procedure and effect of an order of possession.
Concerning partition by sale, specifies that if two or more parties claim the same undivided interest in the property, the court is not required to decide the issue before ordering a partition sale of the property.
Establishes that in a partition sale, the court is not required to appoint more than one commissioner. Eliminates requirements concerning certification of notice prior to sale to persons who filed a written request to be given notice of any resale.
Concerning cotenants' bidding and offers, require adjustments to be made for court orders concerning lack of contribution by one or more cotenants to the payment of carrying costs or improvements (was, expenses of real property).
Expands the provisions concerning the sale of mineral interests to include the sale of oil and gas interests pursuant to the same restrictions.
Updates statutory references concerning the assessment of fees when the sale of real property is required for public purposes, and now expressly includes attorneys' fees.
Expressly prohibits a petitioner from prevailing upon a petition for revocation of a partition sale if the petitioner was mailed notice of the sale as specified under law, as amended.
Concerning sale proceeds, now requires the court to secure to each cotenant the cotenant's ratable share upon receipt of the sale proceeds by either the court or the commissioner (was, at the time that the order of confirmation becomes final). Adds new language to require the court to set the matter for a hearing on the court's own motion or a motion of a party or commissioner if the ratable share due to each cotenant has yet to be determined.
Details separate provisions for sale proceeds belonging to minors and incompetent adults, and parties imprisoned or unknown or unlocatable. Allows for parties to seek disbursement of these proceeds by motion.
Concerning the partition of personal property, now requires commissioners to serve a copy of their report filed with the court on all parties. Changes the terminology to provide for relief from the confirmation order, rather than impeachment, for fraud, mistake or collusion. Establishes that a court is not required to appoint more than one commissioner in a partition sale of real property. Provides that the provisions regarding the partition sale proceeds of real property apply to the partition sale proceeds of personal property.
Makes further conforming, clarifying, technical, and organizational changes throughout the Chapter.
Applies to partition proceedings commenced on or after October 1, 2020.
Makes conforming changes to the following statutes concerning procedure provided for in new GS Chapter 46A: GS 1-301.2; GS 1-394; GS 1-502; and GS 6-21.
Makes technical, clarifying, and conforming changes to GS 1-394; GS 1-502; GS 6-21; GS 11-11; GS 31A-6; GS 39-13.5; GS 93A-43; and GS 136-96.
Enacts GS 41-11.2, concerning sale of standing timber, granting life tenants standing to initiate a proceeding for the sale of timber under GS Chapter 46A.
Amends GS 29-30 to add to the circumstances that bar a surviving spouse from taking a life estate to include (1) that the surviving spouse has waived the right to take a life estate in lieu of an intestate or elective share by an express written waiver, (2) the surviving spouse has executed a written declaration permitting the deceased spouse to convey or encumber the real estate without the consent or joinder of the surviving spouse, or (3) the real estate in which the deceased spouse had an interest was either apportioned to or sold to another person in a partition proceeding initiated before the deceased spouse's death. Makes further clarifying and technical changes. Adds to the elective share petition requirements, recording of notice indicating the county and file number of the clerk's filing with the register of deeds in every county where real property to be claimed under the filing is located. Concerning debts that attach to the household furnishings in the dwelling house and life estates taken by election, includes debts secured by such property (1) by a mortgage or deed given by the deceased spouse to secure the loan whereby the proceeds are used to pay the purchase price of the encumbered property (previously did not specify proceeds restrictions), and (2) by a mortgage or deed of trust on property with respect to which the elective life estate provided for does not apply.
Effective October 1, 2020.
© 2020 School of Government The University of North Carolina at Chapel Hill
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