How to Draft and Submit a Consent Order of Sale in a North Carolina Partition Proceeding

Detailed Answer

When multiple owners hold undivided interests in real property, they may file a partition action under Chapter 46 of the North Carolina General Statutes. If the court determines that a physical division of the land would be unfair or impractical, parties can agree on a sale instead. This agreement takes the form of a Consent Order of Sale. Below is an overview of how to draft and file this document correctly.

1. Verify Eligibility and Court Authority

Under N.C. Gen. Stat. § 46-7 (ncleg.gov/GS_46-7), the court may order a sale when it cannot fairly divide the property. Before drafting, confirm that all record owners have joined the petition or received proper notice. All parties must consent in writing to the sale.

2. Prepare the Consent Order of Sale

Your draft should include:

• Case Caption: List the title of the action, court name, and file number exactly as shown on the original complaint.
• Recitals: Summarize the property description, list the parties, and cite N.C. Gen. Stat. § 46-7 as authority.
• Agreement to Sell: State that all parties agree to sell rather than partition.
• Commissioner Appointment: Ask the court to appoint a commissioner to sell the property at public auction.
• Sale Procedures: Reference N.C. Gen. Stat. § 46-9 (ncleg.gov/GS_46-9) for notice and bidding rules. Include how notice will run, where bids will occur, and time frames for confirmation.
• Distribution of Proceeds: Explain how net sale proceeds will divide among the parties according to their ownership interests.
• Signatures: Provide signature blocks for all parties or their attorneys, followed by a notary acknowledgment.

3. Obtain Party Signatures

Circulate the draft among all record owners (or counsel). Each party must sign the order in front of a notary. If a party cannot sign, obtain a signed written consent or power of attorney confirming approval.

4. File and Serve the Order

Once signed, file the original Consent Order of Sale with the clerk of superior court where the action is pending. Pay any required filing fee. Then, serve a filed-stamped copy on each party or their attorney by certified mail or other method approved by court rules.

5. Implement the Sale

After entry, the appointed commissioner will publish the notice of sale as required under N.C. Gen. Stat. § 46-9. The sale proceeds into the court registry or as otherwise directed. The commissioner then reports back, and the court confirms the sale. Finally, the clerk distributes funds to each party.

Key Steps to Draft and Submit a Consent Order of Sale

• Confirm that all parties have notice and consent in writing.
• Use the original case caption and docket number.
• Include recitals citing N.C. Gen. Stat. § 46-7 as authority.
• Draft clear sale terms: appointment of a commissioner, notice procedure, bid requirements, and distribution plan.
• Obtain notarized signatures from all parties.
• File the order with the clerk of superior court.
• Serve a stamped copy on all attorneys and self-represented parties.
• Monitor the commissioner’s publication and sale process under N.C. Gen. Stat. § 46-9.
• Attend confirmation hearing and finalize distribution.

Conclusion and Call to Action

Drafting and submitting a Consent Order of Sale in a North Carolina partition proceeding requires precision and compliance with statutory rules. Pierce Law Group has seasoned attorneys ready to guide you through each step—ensuring your order meets court standards and your interests receive proper protection. Contact us today by emailing intake@piercelaw.com or calling (919) 341-7055 for a consultation.