North Carolina Tenant Information

North Carolina Tenant Information – Renters Rights

 

If your landlord decides to evict you, you will first receive a written notice that states the reason for the eviction and a time period to either comply with the notice, if possible, or move out of the rental unit. In North Carolina, you could receive one of three types of eviction notices, depending on the reason for the eviction:

• Ten-day notice to pay rent, or demand for rent: You will receive this notice because you failed to pay rent. This notice will give you ten days to pay rent before the landlord can file an eviction lawsuit against you (see N.C. Gen. Stat. § 42-3).
• Unconditional quit notice: You will receive this notice because you violated the lease or rental agreement. This notice will state that you must move out of the rental unit immediately or the landlord will file an eviction lawsuit against you (see N.C. Gen. Stat. § 42-26).
• Seven-day notice to quit: You will receive this notice if you have a month-to-month rental agreement. You must move out of the rental unit within seven days, or your landlord can file an eviction lawsuit against you (see N.C. Gen. Stat. § 42-14).

It is important to note that you are not automatically evicted when the time period runs out. An eviction is a legal proceeding. If you did not comply with the eviction notice by the time the notice period ends, your landlord can then go to court and file the necessary paperwork to begin the eviction lawsuit against you. Depending on how busy the courts are, it could take anywhere from a week to months before a sheriff is ordered to evict you on a certain date. You can remain living in the rental unit until then, but remember that you will be required to pay the landlord rent until the day you move out of the unit.

 

As in all states, North Carolina does not permit landlords to use “self-help” eviction. That is, a landlord cannot change the locks or otherwise impede the tenant’s ability to enter the premises (except in order to maintain or repair the premises), even if the tenant fails to pay the rent.

In order to evict the tenant, the landlord must obtain a court order through a process called “summary ejectment”. (N.C. Gen. Stat. §§ 42-26 to 36.2)

 

Tenants Defending an Eviction Forms

Download How to answer an eviction forms in each state.

Tenant Defence Forms

 

 

The landlord cannot evict a tenant in retaliation for certain protected actions. These protected actions include:

(1) Complaints made to the landlord, his employee, or his agent about conditions or defects in the premises that the landlord is obligated to repair;

(2) complaints to a government agency about a landlord’s alleged violation of any health or safety laws;

(3) attempts to exercise rights described in the lease in state or federal law; and

(4) attempts to become involved with any tenants’ rights groups. If the tenant has undertaken any of these actions in good faith and in the six months before the eviction proceeding, the tenant should bring this to the court’s attention. (N.C. Gen. Stat. §§ 42-36.1 to 36.3)

If a landlord wants to evict a tenant who will not leave voluntarily, then he must file a Magistrate’s Summons and Complaint in Summary Ejectment in Small Claims (Magistrate’s) Court.  The tenant must be served with the Summons and Complaint by the Sheriff’s Office, either personally or by posting.  The Summons will state the date, time, and place for the court hearing.   Small Claims Court hearings are informal, but both parties may have an attorney, present evidence, and subpoena witnesses.
The tenant may have defenses to the eviction action depending upon which basis for eviction the landlord sets out in the Complaint.  The tenant may also file written counterclaims against the landlord.  Examples of such counterclaims include:  1) a rent abatement for the landlord’s failure to make repairs for which he was responsible, after having been properly notified by the tenant; and 2) money damages if the landlord attempted to evict the tenant illegally and damaged him in some way.

 

Either party has ten days in which to appeal the magistrate’s decision to District Court for a new trial. 

During this ten-day appeal period, the landlord cannot make the tenant move.   If the tenant properly appeals the judgment to District Court and pays the rent when due to the Clerk of Superior Court, then he can retain possession of the premises.  The tenant may also be required to pay any undisputed past-due rent to the Clerk of Court, unless he files the appeal as an indigent.

If the eviction is based upon nonpayment of rent and the judgment is entered more than five working days before the day when the next rent payment is due under the lease, then the tenant must also pay the pro-rated rent for that time period to stay execution of the magistrate’s judgment for possession pending trial.

If the tenant does not appeal the magistrate’s judgment within ten days or loses on appeal, then the landlord may evict the tenant by obtaining a Writ of Possession of Real Property issued by the Clerk of Court.  The writ directs the Sheriff to physically remove the tenant and his personal property from the premises.  The Sheriff, not the landlord, is the only one who can remove the tenant and/or his personal property from the rental premises.  The landlord cannot force the tenant to move at any stage of the eviction process.

 

Tenant Defenses to North Carolina Eviction

A tenant faced with eviction in North Carolina may assert any of the following defenses:

• The breach of a lease provision is not substantial enough to warrant an eviction.
• The allegations are false.
• There was improper service.
• The notice was improper.
• The landlord waived eviction by accepting rent.
• If for criminal activity, the tenant had no knowledge of the activity or that the cotenant had violated any criminal or drug trafficking laws, or the tenant made reasonable attempts to prevent the activity.
• The eviction is in retaliation for the tenant having filed a complaint regarding the condition of the property.
• The eviction is based on the tenant’s religion, race, sex, national origin, creed, age, marital or family status, or disability.

In North Carolina, the process by which a landlord can have a tenant removed from possession of the leased premises derives both from the common law rights of a landlord and from the present day statutes enacted by our legislature. Unfortunately, the prescribed methods for obtaining an eviction do not favor a landlord who desires a quick result, as it usually takes at least 30 days and often more (up to several months in some cases) before a tenant can properly be removed from the premises. Moreover, the protections given to tenants are greater in a residential tenancy than in a commercial tenancy, which often further increases the delay for a landlord seeking to evict a residential tenant. Nevertheless, a landlord can accomplish the task of evicting a tenant with relatively little effort, as long as he has a good measure of patience.

THE BASICS

Getting served with court papers: summons and complaint.

Service in person by sheriff’s deputy: if you were served the court papers in person (from the deputy’s hand to yours), the landlord ( LL) can get a judgment for back rent owed as well as possession of the residence.

Service by mail/papers tacked on your door: if you are not served in person and you do not appear at the hearing, the landlord will be granted possession of the residence but NOT a money judgment (you will still owe the money but, without a judgment, LL can’t collect on the judgment by having sheriff seize your property to sell it to satisfy the judgment)

AFTER THE HEARING

IF YOU WON: Congratulations!

• LL can file appeal within 10 days

• You must still pay rent during the appeal period (directly to LL) unless magistrate says otherwise.

IF YOU LOST: MOVE OUT OR FILE AN APPEAL

• Deadline for appealing the decision is ten (10) days after the hearing, including weekends and holidays.

• However, if the 10th day falls on a weekend or holiday, deadline is on the next business day.

• Appeal is to district court, in front of a judge, to hear the entire case again.

• If you appeal the decision, you will be able to stay in your home until your next hearing date as long as you continue to pay rent into the court on time each month.

HOW TO FILE THE APPEAL

• Fill out 3 forms:

1. notice of appeal to district court

2. rent bond form: promise to pay rent at courthouse during appeal period

3. petition to appeal as indigent: to avoid $80 appeal costs

• File appeal with the Clerk of Superior Court at your county courthouse, open 8:00 am-5:00 pm

• Hand-deliver or mail copy of Notice of Appeal to LL on the same day you file appeal

• You will not have to pay the $80 appeal costs if you fill out “Petition to Sue as Indigent” form and show the clerk your food stamp or SSI or TANF card, OR if you fill out an “Affidavit of Indigency” form.

• Pay rent bond: NOT any amount past due, just rent AS IT COMES DUE.

• 1st rent bond payment will be pro-rated amount, starting the day after the hearing through the end of the month; 1st payment due when you file the appeal

• Pay rent bond to cashier at the courthouse.

• Rent bond due on the 5th working day of each month. In your case, this amount is

• Do NOT pay rent bond to LL! Pay ONLY at courthouse.

• NO excuse for missing rent bond deadline, so DON’T wait until last day to pay, to avoid being padlocked out if your car breaks down, or your ride doesn’t show up, or your mother is in the hospital, etc.

IF YOU CAN’T FILE APPEAL AS AN INDIGENT

• You’ll have to pay the appeal costs at courthouse to file appeal.

• You’ll also have to pay any back rent due at courthouse the time of the appeal, to stay in the home during the appeal period.

• You’ll also have to pay ongoing rent bond at the courthouse as it accrues

IF YOU DON’T FILE AN APPEAL (or if you miss a rent bond payment)

• You may be padlocked out within about a week of the appeal/payment deadline.

• The sheriff will send you a notice in the mail stating the exact date and time of the padlocking.

• You should remove all of your belongings from your residencebefore the padlock date.

• If you still have belongings in the residence after the padlocking, you should contact your landlord immediately to make an appointment to get the remaining belongings.

• There is a 7-day deadline from the date of the padlocking to getyour things.

• If you contact LL within the 7-day deadline, s/he is only obliged to give you one opportunity to retrieve your things; you should be sure that you are equipped and able to get everything at once, and that you have enough time and help to do so.

• After 7-day period ends, LL can keep, sell, give away, or throw away your things.

CASE ON APPEAL

• Usually within two months of filing the appeal, you will receive a calendar in the mail with the date of your district court (appeal) hearing.

• If you win, congratulations! Case is over; LL can still appeal to the Court of Appeals but most do not.

• If you lose, you have 30 days to move before the landlord can order the sheriff to padlock the residence (unless the judge orders that it happen sooner).

• Same padlocking time frame and process applies: you can get padlocked out within a week, and then will have seven days to get any remaining belongings out of the house.

MOVING OUT

• Return the keys ASAP! You are responsible for rent until you turn keys in.

• You should leave the premises clean and empty.

• If your landlord has to clean up (beyond ordinary wear and tear) or remove any items or trash after you leave, he can charge you for his expenses.

• LL’s expenses can be deducted from your security deposit, and he can charge you beyond that amount as well.

• Before turning in the keys, take photos of each room to document its condition, in case you later need to dispute the landlord’s move-out charges. Have a friend assist you who can testify, if necessary, about the condition of the premises.

• Give LL forwarding address to send your security deposit or an accounting of how it was spent. LL has 30 days to do so after you move out. If you dispute charges your LL has made to your security deposit, contact an attorney.

IF YOUR HOME HAS UNFIT CONDITIONS

Unfit conditions are not an excuse for nonpayment of rent! Take these steps instead:

1. Put requests for repairs to LL in writing, date them, save copies for yourself

2. Take photos/videotape footage to document the unfit conditions in your home

3. If you have a Section 8 voucher, complain to your caseworker

4. Call City or County Inspectors or Public Health Dept. to ask for an inspection of your home

5. Contact an attorney for assistance

6. Continue to pay your rent!

 

North Carolina General Statutes ¶42-26 et seq. creates a statutory right for a landlord to institute a proceeding for Summary Ejectment of any tenant who has failed to do one of two things:

• surrender possession of the leased premises after his lease term has expired (a.k.a. a holdover tenant); or
• comply with the requirements of his lease, provided the lease allows for the termination of his right to possession in such event (most often by failing to pay rent or other fees in a timely fashion).

Before the action can be filed, however, the landlord must have given written notice to the tenant that his right to possession has been terminated as a result of the breach (either #1 or #2, above). The lease provisions are particularly important here and all requirements of the lease (e.g. prior written notices to the tenant or opportunities to cure any breach) should be closely followed to ensure the landlord’s right to evict the tenant is preserved and not waived.

 

All that is then required is to file with the Court a Complaint for Summary Ejectment, which is then served by mail upon the tenant by the Sheriff. The required fees are presently $40 for filing the Complaint, plus $5 per defendant for service of the Summons.

 

If the tenant is being evicted for failure to pay rent, the Complaint for Summary Ejectment may also include a claim for the rent that is past due, if that amount is less than $3,000. If not, a separate lawsuit in District or Superior Court would be necessary to attempt to recover these amounts from the tenant.

 

After filing of the Complaint, the Court selects a hearing date, which is required to be within 7 days of the filing of the action, and notifies both parties of that date and the time of the hearing. The hearing is then held before a Magistrate and both parties are given an opportunity to put on evidence in support of their case.

 

If a judgment for ejectment is entered in favor of the landlord, the tenant has an automatic right to appeal that ruling within 10 days to the District Court. If appealed, the case will be placed on the next available calendar for re-hearing. This can take as long as a few months, depending on the Court’s workload. The tenant who elects to appeal is also allowed to remain in the premises, but is required to pay his rent going forward to the Court while the parties wait for the new hearing date.

 

If no appeal is filed, or if the appeal is unsuccessful, the landlord can then begin eviction proceedings. He must first file a Writ of Possession with the Court and have the Sheriff serve it upon the tenant, which costs an additional $15 plus $5 per defendant for service. The Sheriff is required to send a Notice to the tenant informing him of the date on which the eviction will occur (within 7 days of the Sheriff’s receipt of the Writ). If the tenant has not voluntarily vacated the premises before that date, the Sheriff will make arrangements with the landlord for the padlocking of the premises. The landlord is responsible for hiring a locksmith to change the locks at the designated time when the Sheriff is present.

 

Finally, if any personal property of the tenant remains on the premises, additional steps must be taken before the property can be removed or sold. Further written notice must be provided, and the opportunity for the tenant to remove any property at the time of eviction, if he requests. The tenant is also allowed an additional 10 day period after the eviction during which he is entitled to have his property returned by the landlord if he makes a proper request. If the tenant does not request the return of any property within this 10 day period, the landlord may then dispose of or sell the property. Certain additional requirements, including further notice to the tenant, must be met before any such sale is permissible, however. The proceeds from any such sale would be applied toward reimbursing the landlord for the costs of the eviction proceedings and then toward satisfaction of any past due rent or other charges.

 

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