Short Answer

Yes—if every co-owner and anyone else with a legal interest agrees, you can resolve a North Carolina partition case by consent and sell privately or complete a buyout, then dismiss the case. If even one required party refuses, the partition proceeds and any court-ordered sale must follow judicial sale rules, including a 10-day upset-bid period and associated commissioner and sales costs.

Understanding the Problem

In North Carolina, you and your co-owner are in a partition case because the co-owner filed for a sale. You want to avoid a court-run auction with extra fees and are asking: can you both sign a consent order to sell or buy out instead of completing a court-ordered partition sale?

Apply the Law

Partition cases are special proceedings before the Clerk of Superior Court in the county where the land sits. The clerk can enter orders by consent. If the parties settle, they can place their agreement in a consent order and either: (a) dismiss the case and sell privately (or complete a buyout), or (b) proceed with a sale inside the case, which must follow North Carolina’s judicial sale rules. Judicial sales—public or private—require notice, a report of sale, and a statutory 10-day upset-bid window before the clerk can confirm the sale.

Key Requirements

• Unanimous consent: All co-owners (and anyone with a recorded interest that must sign to convey clear title, such as spouses with marital interests or lienholders as needed) must agree in writing to a private sale or buyout.
• Clear settlement terms: The consent order (or separate settlement agreement) should set out price or pricing method, who lists the property, how offers are handled, expense splits, and how net proceeds are divided.
• Choose sale path: To avoid upset bids and commissioner costs, dismiss the partition and sell privately. If you keep the sale inside the partition case, judicial sale procedures—including upset bids—will apply.
• Court oversight when needed: If any owner is a minor or incompetent, additional safeguards apply and a Superior Court judge may need to approve a sale in addition to the clerk.
• Timing and venue: File in the Clerk of Superior Court where the property is located; parties can submit a proposed consent order at any time before an order of sale and confirmation.

What the Statutes Say

• North Carolina Gen. Stat. Chapter 46A (Partition) – Establishes partition procedures before the Clerk of Superior Court.
• G.S. 1-339.25 (Upset bids on public sales) – Creates a 10-day upset-bid period for judicial public sales.
• G.S. 1-339.36 (Upset bids on private sales) – Applies the 10-day upset-bid process to judicial private sales.
• G.S. 1-339.37 (Confirmation of private sale) – Requires confirmation before completion of a judicial private sale.

Analysis

Apply the Rule to the Facts: Here, your co-owner filed a partition seeking a sale. If both of you sign a consent order that sets out either your buyout of their half or a private listing and split of the net proceeds, the clerk can enter the order and the case can be dismissed so you close privately and avoid commissioner and upset-bid procedures. If the co-owner won’t accept your buyout and won’t agree to a private sale, the case moves toward a court-ordered sale with judicial-sale steps, fees, and a 10-day upset-bid period.

Process & Timing

1. Who files: Either party. Where: Clerk of Superior Court in the county where the land is located. What: A signed settlement agreement and proposed consent order in the partition file; if proceeding with a judicial sale, a motion/order for sale and the required reports under the judicial sales statutes. When: Submit the consent order before an order of sale is entered or before confirmation; once a sale is reported, a 10-day upset-bid clock starts.
2. If settling, the clerk reviews and, if appropriate, enters the consent order; the parties then close the private sale or buyout and file a dismissal. If not settling, the clerk may authorize a public or private judicial sale, followed by report of sale, the 10-day upset-bid period, and confirmation.
3. Final step: For a private settlement, record the deed(s) and disburse proceeds per the agreement. For a judicial sale, after the upset-bid period ends and the clerk confirms, the commissioner or authorized seller delivers the deed and the clerk oversees distribution of proceeds per the order.

Exceptions & Pitfalls

• Missing signatures: A private settlement fails if any co-owner (or a spouse with marital rights) or a required lienholder won’t sign; you may need to resolve liens or proceed with partition.
• Trying to waive upset bids inside the case: You cannot contract around the upset-bid statutes for a judicial sale. To avoid upset bids, dismiss and sell privately with all parties’ consent.
• Minors or incompetents: Additional protections and judicial approvals can apply; build in time and court oversight.
• Vague terms: Incomplete consent orders (no price method, no brokerage terms, no net-proceeds formula) create delays and disputes.
• Heirs’ property considerations: If the land is family-owned through inheritance, additional appraisal/buyout steps may apply before a sale; these procedures can change and depend on the property’s status.

Talk to a Partition Action Attorney

If you’re deciding between a consent sale or a court-ordered partition, our firm can help you structure a settlement, protect title, and manage the timelines. Call us today.

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.