Can I request a continuance for the partition hearing while we work toward closing? – North Carolina

Short Answer

Yes. In North Carolina partition cases, you may ask the Clerk of Superior Court to continue a hearing for good cause. If the property has been sold through the judicial sale and upset bid process and closing is pending, a written motion showing diligent closing efforts, a brief status update, and a date certain to reset often supports a short continuance. If a contempt hearing is set, you must respond to the show-cause order and can request a continuance while documenting your progress toward closing.

Understanding the Problem

You’re asking whether, in North Carolina, a co-owner in a partition sale can get the Clerk of Superior Court to postpone a hearing—here, a contempt hearing—while the commissioner’s sale is moving toward closing. One key fact: the buyer has repeatedly extended the closing date after the upset bid period ended. You want to avoid sanctions, keep the sale on track, and understand how proceeds and carrying costs will be handled.

Apply the Law

North Carolina partition actions are special proceedings before the Clerk of Superior Court. The clerk manages the calendar and has discretion to continue hearings for good cause. Judicial sale procedures (including upset bids, confirmation, and compliance) are governed by North Carolina’s judicial sales statutes. The clerk can consider civil contempt when a party disobeys an order, but civil contempt requires notice and an opportunity to be heard. After a confirmed sale and compliance by the purchaser, the commissioner reports and the clerk oversees payment of sale costs and net distribution to the co-owners; necessary preservation costs may be allowed before distribution or credited in the allocation.

Key Requirements

• Good cause and diligence: Show a concrete reason for delay (e.g., lender underwriting or title cure), document efforts, and propose a prompt, specific reset date.
• Timely motion and service: File a written motion to continue and serve all parties in the special proceeding; include a brief status report and any supporting exhibits.
• Address contempt posture: If a show-cause order issued, file a written response on time and request a continuance in that filing, attaching proof of progress.
• No undue prejudice: Explain why a short delay will not harm other owners (for example, deposit held, buyer’s extensions documented, insurance/taxes current).
• Distribution and costs: Expect sale costs (commissioner fee, advertising, court costs, taxes, and valid liens) to be paid first; seek allowance or credits for necessary carrying costs with receipts.

What the Statutes Say

• Special proceedings apply civil rules (G.S. 1-393) – Special proceedings generally follow the Rules of Civil Procedure, including motions practice.
• Judicial sales procedures (Article 29A) – Partition sales follow judicial sale rules, including upset bids, confirmation, and compliance.
• Powers of the clerk (G.S. 7A-103) – The clerk controls proceedings and may enforce orders, including through contempt consistent with Chapter 5A.
• Civil contempt procedures (G.S. 5A-23) – Requires notice and a show-cause process before civil contempt can be imposed.

Analysis

Apply the Rule to the Facts: Because the buyer has requested repeated extensions after the upset bid period, a motion showing the executed contract, addenda, and a realistic closing date supports good cause. Filing a timely written request and serving all parties satisfies the procedural expectations in special proceedings. Responding to the show-cause order with proof of diligent efforts (status letter from the closing attorney, lender conditions, title updates) addresses the contempt concern. For proceeds, expect the commissioner to pay sale costs and valid liens first; then seek documented credits for necessary taxes, insurance, or essential maintenance before net distribution to co-owners.

Process & Timing

1. Who files: Any party (or the commissioner) seeking delay. Where: Clerk of Superior Court in the county where the partition special proceeding is pending. What: Motion to Continue and Status Report; attach the purchase contract, extension addenda, commissioner’s latest report, and proof of diligence. For contempt, file a written response to the Order to Show Cause and include the continuance request. When: File as soon as you know of the need; do not wait until the hearing date. County practices vary on lead time.
2. The clerk may decide the motion on the papers or set a brief hearing. Bring a proposed order with a date certain, and be ready to address alternatives (e.g., an order fixing a final compliance date or authorizing enforcement against a defaulting buyer).
3. After closing, the commissioner files a final report. The clerk then approves sale costs and enters an order directing distribution of net proceeds. Present any carrying-cost documentation at or before that distribution hearing.

Exceptions & Pitfalls

• Last-minute or unsupported continuance requests are often denied; provide specific documents (contract addenda, lender/title updates) and a firm reset date.
• If the buyer cannot close by a reasonable deadline, the commissioner may seek enforcement remedies or resale under judicial sale rules; a continuance is not guaranteed.
• Do not expect distribution before closing and compliance; proceeds are typically disbursed only after costs and liens are resolved.
• Carrying costs must be necessary to preserve the property and supported by receipts; elective improvements usually are not reimbursed.
• Serve all parties in the special proceeding; missed notice can delay or derail relief.

Talk to a Partition Action Attorney

If you’re dealing with a partition sale that is headed to closing while a hearing is looming, 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.