Short Answer

In North Carolina, you ask the Clerk of Superior Court in your partition case to order a sale and appoint a commissioner when a fair in-kind split is not practical and would harm an owner. If granted, the clerk’s order names a commissioner, sets the sale method (public or private), requires a bond if needed, and directs a judicial sale under Article 29A (upset bids and court confirmation apply). The court can also set possession terms to allow marketing and closing, and may waive mediation for good cause.

Understanding the Problem

You want to know if, and how, you can get the North Carolina court to appoint a commissioner to sell property you co-own and move the sale forward without delays. In your partition action, one co-owner currently lives in the home. You plan to ask the Clerk of Superior Court to order a sale, appoint a commissioner, set a move-out date so the property can be shown and closed, and waive mediation.

Apply the Law

In a North Carolina partition proceeding, the Clerk of Superior Court decides whether to split property in-kind or order a sale. If an in-kind division can’t be made without substantial injury to one or more owners, the clerk may order a sale and appoint a commissioner to conduct a judicial sale. The commissioner’s sale follows Article 29A procedures (public notice, upset bids, and court confirmation). Venue is the county where the land sits. The 10-day upset-bid window is the key sale deadline.

Key Requirements

• Show co-ownership and jurisdiction: File and serve a partition special proceeding in the county where the land is located.
• Prove sale is necessary: Demonstrate that an in-kind split would cause substantial injury (e.g., physical impracticality, value loss).
• Request appointment: Move for an order of sale and appointment of a named, qualified commissioner; propose public or private sale terms.
• Article 29A compliance: Provide for advertising, deposits, upset bids, reporting, and court confirmation; address commissioner’s bond when required.
• Possession and access: Ask for reasonable access and, if needed, a move-out date tied to marketing, closing, or delivery of possession.
• Mediation: Be prepared for clerk-ordered mediation; request waiver only with good cause.

What the Statutes Say

• N.C. Gen. Stat. § 1-339.10 (Bond of person holding sale) – Clerk may require a bond for the commissioner or person conducting a judicial sale.
• N.C. Gen. Stat. § 1-339.25 (Upset bids after sale of real property) – Any person may file an upset bid within 10 days after the report of sale.
• N.C. Gen. Stat. § 1-339.28 (Confirmation of sale of real property) – Court confirms the sale after the upset-bid period; special confirmation rules apply if any owner is a minor or incompetent.
• N.C. Gen. Stat. § 7A-38.3B (Mediation in matters before the clerk) – Authorizes the clerk to order mediation and outlines waiver for good cause.

Analysis

Apply the Rule to the Facts: You and the co-owner have already filed a partition case, and one co-owner is living in the house while the other reports poor maintenance. Those facts typically support a sale rather than in-kind division. At the hearing, ask the Clerk of Superior Court to (1) order a sale, (2) appoint a commissioner with defined authority and bond, (3) set access and a reasonable move-out date to allow marketing and closing, and (4) waive mediation by showing prior failed negotiations and time-sensitive sale needs.

Process & Timing

1. Who files: Any co-tenant/petitioner. Where: Clerk of Superior Court in the North Carolina county where the property is located. What: Motion for Order of Sale and Appointment of Commissioner, with a proposed order detailing sale method, bond, access, and possession terms; supporting affidavits on why sale is necessary; and, if sought, a motion to waive mediation. When: Present at the scheduled partition hearing or by noticed motion set before the clerk.
2. After order: The commissioner advertises and conducts a judicial sale (public or private). For a public sale, the commissioner files a report of sale; a 10-day upset-bid period follows. Each timely upset bid restarts a new 10-day period. Timeframes can vary by county and bidding activity.
3. Confirmation and closing: When no further upset bid is filed, the clerk enters an order confirming the sale. The commissioner collects the balance, delivers the deed, and files a final report. The court then directs distribution of net proceeds among owners after costs.

Exceptions & Pitfalls

• If any owner is a minor or incompetent, a superior court judge must confirm the sale; build that step into your timeline.
• Commissioner’s bond: if required, make sure the order sets the bond amount and the bond is filed before marketing.
• Sale method mismatches: choose public vs. private sale thoughtfully; private sales still follow judicial sale rules, including upset bids.
• Possession issues: if the occupying co-tenant contests move-out, the clerk may limit relief or transfer equitable disputes to superior court.
• Mediation: clerks often order it; to waive, show concrete good cause (e.g., imminent listing deadlines, prior failed negotiations).

Talk to a Partition Action Attorney

If you’re dealing with a co-owned property sale in a partition case and need a commissioner appointed, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at 919-341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.