Short Answer

In North Carolina judicial sales (including partition sales), any person can file an upset bid with the Clerk of Superior Court within 10 days after the report of sale (or the last upset bid). The new bid must exceed the current price and include a deposit, typically five percent. The process repeats until 10 days pass with no higher bid; then the clerk considers confirmation. To protect yourself, track the 10-day windows, be ready to bid or object, and ask the clerk to credit you for taxes, insurance, and necessary repairs before distributing proceeds.

Understanding the Problem

You are in a North Carolina partition case, and the property is in the upset bid stage before the Clerk of Superior Court. You want to know: can I file or respond to upset bids, what happens at this stage, and how do I safeguard my share—including reimbursement for carrying costs—before the clerk confirms the sale?

Apply the Law

In a partition by sale, the court appoints a commissioner to sell the property under North Carolina’s judicial sale rules. After the commissioner files a report of sale, a 10-day upset bid period opens. Any person may place a higher qualifying bid by filing it with the clerk and paying the required deposit. Each qualifying upset bid restarts a new 10-day window. When no further upset bids are filed, the clerk considers whether to confirm the sale. If a party is a minor or incompetent, a Superior Court judge also signs the confirmation order. The partition court can address how sale proceeds are distributed, including credits for taxes, insurance, and necessary repairs paid by one co-owner.

Key Requirements

• Qualifying upset bid: File within 10 days of the report of sale or last upset bid; the new price must exceed the current sale price under the statute’s minimum increase, with a deposit (commonly five percent of the new bid).
• Deposit and form of payment: Pay the required deposit to the clerk when filing the upset bid; deposits are returned if you are outbid or the sale is not confirmed.
• Rolling 10‑day windows: Each valid upset bid triggers a new 10‑day period for others to bid, until a 10‑day period passes with no further bids.
• Confirmation: After the last upset period closes, the clerk reviews the sale for regularity and may confirm; if a party is a minor/incompetent, a judge must also approve.
• Proceeds and credits: Before distributing proceeds, the clerk can allocate credits/offsets for carrying costs (e.g., taxes, insurance, necessary repairs) and resolve waste/offset issues raised in the partition.

What the Statutes Say

• North Carolina Gen. Stat. § 1-339.25 (Upset bids on real property) – Sets the 10‑day upset bid window and deposit requirements.
• North Carolina Gen. Stat. § 1-339.36 (Private sales; upset bids) – Applies upset bid rules to private judicial sales.
• North Carolina Gen. Stat. § 1-339.28 (Confirmation of sales) – Addresses confirmation of sales and when a judge must also approve.

Analysis

Apply the Rule to the Facts: You are mid‑partition, and the sale is in the upset bid stage. Watch each 10‑day period after the report of sale or any upset bid. If the current price is low, you can file your own upset bid with the required five‑percent deposit to push the price higher. At or before confirmation, request credits for taxes, insurance, and necessary repairs you paid, and raise any waste/offset issues so the clerk adjusts distributions from the sale proceeds.

Process & Timing

1. Who files: Any person may file an upset bid; the commissioner files the report of sale. Where: Clerk of Superior Court, Special Proceedings file in the county where the property sits. What: Report of Sale (by commissioner) then an Upset Bid filing with required deposit; later, an Order of Confirmation is entered. When: File any upset bid within 10 days after the report of sale—or after the last qualifying upset bid—to keep bidding open.
2. After each qualifying upset bid, a new 10‑day period opens for further bids. Expect multiple cycles if interest is strong; timelines can vary by county scheduling and volume.
3. When no new upset bids are filed within the last 10‑day window, the clerk sets or holds a confirmation review or hearing. If confirmed, the commissioner delivers a deed, and the clerk addresses distribution of proceeds, including any credits and offsets.

Exceptions & Pitfalls

• Minors or incompetents: If any party is a minor or incompetent, a Superior Court judge must also approve the sale at confirmation.
• Deposit mistakes: An insufficient deposit or late filing invalidates an upset bid—confirm the percentage and payment method with the clerk before filing.
• Silence can cost you: If you want credits for taxes, insurance, necessary repairs, or to assert waste/offsets, raise them before confirmation so they’re reflected in distribution.
• Local practice: Counties differ in scheduling and forms; follow your clerk’s instructions for notice, hearings, and how to tender deposits.
• Sale irregularities: Objections to irregularity must be timely; after confirmation, relief is harder to obtain.

Talk to a Real Estate Attorney

If you’re dealing with a partition sale and upset bids and want to maximize the sale price and secure credits for your carrying costs, 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.