Short Answer

In a North Carolina partition special proceeding, once the Clerk of Superior Court appoints a commissioner and orders a sale, the commissioner—not the individual co-owners—signs the real estate listing agreement in the commissioner’s official capacity if a private (brokered) sale is authorized. A power of attorney is only needed if the owners pursue a voluntary, non-judicial listing; it is not required when the court-appointed commissioner is handling the sale.

Understanding the Problem

You are asking, under North Carolina partition law, who signs the listing agreement when there are multiple co-owners and a partition sale will be handled by a commissioner. You have three parcels in a special proceeding and want to appoint a commissioner to oversee the sale. The concern is whether all owners must sign a listing or if a power of attorney is needed.

Apply the Law

In North Carolina partition cases, the Clerk of Superior Court can appoint a commissioner to conduct a court-ordered sale. The sale proceeds under the judicial sales statutes. If the court authorizes a private (open‑market) sale, the commissioner may engage a real estate broker and sign a listing agreement in the commissioner’s official capacity, typically with the court setting or approving the broker’s commission and terms. The commissioner, not the co-owners, signs sale documents and later executes the deed after court confirmation. Public auctions follow the statutory notice and upset-bid process; private sales are also subject to report and confirmation with an upset-bid window.

Key Requirements

• Order appointing a commissioner and authorizing sale: The Clerk must appoint a commissioner and specify whether the sale is public auction or private/open‑market.
• Authority to use a broker for private sale: For a brokered listing, the court’s order should authorize a private sale and permit the commissioner to hire a broker and sign a listing; commissions are typically approved by the court.
• Commissioner signs: The commissioner signs the listing and, after confirmation, signs the deed in the commissioner’s capacity; co-owner signatures are not required for the listing.
• Court oversight and upset bids: The commissioner must report the sale, allow the statutory upset‑bid period (generally 10 days), and obtain confirmation before closing.
• POA only for non‑judicial listings: If owners choose to list and sell voluntarily outside the partition sale, each titled owner or a valid agent under a power of attorney must sign.

What the Statutes Say

• N.C. Gen. Stat. § 1-339.1 (Judicial sales; scope and definitions) – Court-ordered real property sales are conducted under Article 29A with court control over procedure.
• N.C. Gen. Stat. § 1-339.33 (Private sale; authorization) – Court may authorize a private (open‑market) sale and set terms, subject to report and upset bids.
• N.C. Gen. Stat. § 1-339.28(b) (Sales affecting minors or incompetents) – Certain sales involving minors/incompetents require additional judicial confirmation.

Analysis

Apply the Rule to the Facts: Because your case is a partition special proceeding involving three parcels, the Clerk can appoint a commissioner and order a sale. If the order authorizes a private sale and use of a broker, the commissioner signs the listing agreement in that official role, so the co-owners do not need to sign and no power of attorney is needed. If the order does not yet permit a brokered listing, the commissioner should seek a supplemental order authorizing a private sale and approving broker engagement and commission terms before listing.

Process & Timing

1. Who files: Any co-owner. Where: Clerk of Superior Court in the North Carolina county where the property lies. What: Petition for partition; request appointment of a commissioner and sale. If pursuing a brokered sale, request authority for a private sale and broker engagement in the order. When: Early in the proceeding—seek broker authority before signing any listing.
2. Once appointed and authorized for a private sale, the commissioner selects a broker (consistent with the order), signs the listing as “Commissioner,” and proceeds to market the property. After an acceptable offer is obtained, the commissioner files the required report of sale and waits the statutory upset‑bid period (often 10 days) before confirmation. Timing varies by county.
3. After the upset‑bid period closes without a qualifying bid and the court confirms the sale, the commissioner executes the commissioner’s deed and closes in accordance with the order.

Exceptions & Pitfalls

• If the order does not expressly authorize a private sale and broker engagement, obtain a supplemental order before signing a listing.
• Do not list co-owners as “sellers” on the listing; the signing party is the commissioner in an official capacity, and the listing and purchase agreement must reflect court approval/confirmation requirements.
• If any party is a minor or incompetent, additional judicial confirmation may be required before conveyance.
• For multiple parcels, ensure the order specifies whether they may be marketed together or must be listed/sold separately.
• Outside a court-ordered sale, a voluntary listing requires signatures from all titled owners or valid agents under properly authorized powers of attorney.

Talk to a Partition Action Attorney

If you’re navigating a partition sale and need clarity on who signs the listing or how to structure a brokered sale under court oversight, our firm has experienced attorneys who can help you understand your options and timelines. Call us today to discuss your situation.

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.