Short Answer

Yes. In a North Carolina partition case, the clerk of superior court can order a sale and appoint a commissioner to conduct it, and the court may authorize a private sale instead of a public auction when shown to be in the parties’ best interest. Even with a negotiated buyer, the sale must follow North Carolina’s judicial sale rules, including filing a report, allowing upset bids for a set period, and obtaining court confirmation.

How North Carolina Law Applies

Partition is a special proceeding before the clerk of superior court. The clerk first decides whether the property can be physically divided among co-owners (partition in kind) or whether a sale is necessary because a split would cause substantial injury to one or more co-owners. If a sale is ordered, the clerk appoints a commissioner to conduct the sale. North Carolina’s judicial sale statutes allow either a public auction or a private sale if the court finds a private sale better serves the owners’ interests—such as when you already have a ready, willing, and able buyer at a fair price.

However, “private sale” does not mean a guaranteed, closed deal. The commissioner must follow the judicial sale procedures. That includes reporting the negotiated sale to the court, an upset-bid window that lets others raise the price, and court confirmation before the deed is delivered.

Key Requirements

• Sale vs. in-kind division: The clerk orders a sale only if the evidence shows a physical division would substantially harm at least one co-owner’s interests (for example, by materially lowering the overall value). If a sale is ordered, a commissioner is appointed.
• Appointment and role of a commissioner: The clerk typically appoints a neutral commissioner to carry out the court’s order—advertise, market, receive bids or offers, file the required report(s), and close after confirmation. The court may require the commissioner to post a bond.
• Private sale to your buyer: You may ask the court to authorize a private sale to a specific buyer. You should present proof that a private sale is in everyone’s best interest—e.g., an appraisal, the signed offer, proof of funds/financing, and marketing efforts showing your buyer’s price is strong relative to the market.
• Judicial-sale safeguards still apply: Even for private sales, the commissioner must file a report of sale; the sale is subject to upset bids for a set period; and the court must confirm the sale before closing. These steps protect all cotenants by ensuring the property brings the best obtainable price.
• Who may buy: A cotenant or a third party may purchase if procedures are followed. The commissioner and those with conflicts generally cannot buy unless the court authorizes it and safeguards are satisfied.

Process & Timing

1. File and serve the partition petition. Include a legal description, ownership interests, and a request for partition; request a sale if you believe in-kind division would cause substantial injury. All cotenants must be served; unknown or unlocatable owners may require a guardian ad litem.
2. Hearing on partition. The clerk decides whether to partition in kind or by sale. If by sale, the clerk appoints a commissioner and sets whether the sale is public or private.
3. Motion for private sale and proposed terms. If you have a buyer, move for a private sale. Provide an appraisal or market analysis, the signed offer, proof of funds, and any broker opinions to show the private sale is in the parties’ best interest.
4. Sale procedures. For private sales, the commissioner negotiates consistent with the court’s order and then files a report of private sale with the court.
5. Upset-bid period. After the commissioner’s report is filed, a statutory window opens for upset bids. A qualifying upset bid increases the price and extends the bidding period. This can repeat until no further upset bid is timely filed.
6. Confirmation. If no timely upset bid is filed (or after the last one), the commissioner seeks an order confirming the sale.
7. Closing and distribution. After confirmation, the commissioner takes the buyer’s funds, pays costs as the order directs, and distributes net proceeds among cotenants according to their interests (adjusted for any liens and approved costs). The commissioner executes the deed to the confirmed buyer.
8. Appeals or transfer. If an equitable defense or complex title dispute is raised, the clerk transfers the matter to superior court. Orders disposing of the special proceeding may be appealed for a de novo hearing in superior court.

What the Statutes Say

• Judicial Sales, Chapter 1, Article 29A — Governs court-ordered sales, including partition sales. These rules apply to public and private sales, reports, upset bids, and confirmation.
• G.S. 1-339.33 (Private sale; when and how held) — Authorizes private sales on terms set by the court.
• G.S. 1-339.36 (Report of private sale) — Requires the commissioner to file a report of private sale with the court.
• G.S. 1-339.37 (Upset bids in private sale) — Sets the 10-day upset bid process and deposit requirements for private sales.
• G.S. 1-339.38 (Order of confirmation; resale) — Court review and confirmation of a private sale (or order of resale if needed).
• G.S. 1-339.26 (Upset bids in public sale) — Establishes similar upset-bid rules for public sales. Helpful for understanding judicial-sale protections.
• G.S. 1-301.2 (Special proceedings; transfer and appeal) — Requires transfer to superior court if issues of fact, equitable defenses, or requests for equitable relief arise; allows de novo appeal of clerk’s final orders.

Exceptions & Pitfalls

• Heirs property rules: If the land qualifies as “heirs property,” special statutory procedures may apply, including appraisal, buyout options among cotenants, and an open-market sale through a broker. These steps can change how a sale proceeds and can affect timelines.
• Upset bids can change your buyer: A private sale to your chosen buyer is still subject to upset bids and court confirmation. You cannot lock in a buyer without giving others a chance to raise the price under the statute.
• Proof matters: Courts typically expect a current appraisal or persuasive market data to justify a private sale over a public auction, especially if there is limited marketing.
• Service and parties: All cotenants and known lienholders should be joined and properly served. Missing necessary parties can delay or undermine the sale.
• Conflicts: A commissioner generally cannot purchase the property. Any proposed sale involving a fiduciary or related party must be disclosed and justified to avoid disqualification or denial.
• Transfers to superior court: If someone raises equitable defenses (for example, alleging a constructive trust or a title dispute), the clerk must transfer the matter to superior court, which can add time.

Helpful Hints

• Bring an appraisal and a signed offer with proof of funds or loan approval when requesting a private sale appointment and terms.
• If possible, get broad agreement among cotenants on the sale method and buyer; written consents can streamline court approval.
• Budget time for the upset-bid period after the report is filed; each upset bid reopens the window and can delay closing.
• Ask the court to set clear marketing and reporting instructions for the commissioner to avoid disputes later.
• If heirs property rules may apply, address appraisal, notices, and potential buyout rights early to avoid restarts.

Talk to a Partition Action Attorney

If you’re seeking a court-appointed commissioner and private sale to a specific buyer in a partition case, our firm can help you evaluate the best sale method, prepare the proof the court needs, and navigate upset bids and confirmation. 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.