Residential Evictions: Taking Back Your Leased Property . . .The Right Way [UPDATED]

Jennifer Ruby

[This blog replaces a previous post from September 2013, due to several changes to the North Carolina summary ejectment statutes effective October 1, 2013.]        

You are a landlord and you enter into a residential lease agreement with a seemingly good tenant.

Everything is going along fine until . . . the tenant stops paying rent, or the tenant fails to leave when the term of the lease expires, or the tenant breaches the lease agreement in some other way.  How do you get your property back and get the tenant out?  Can you simply change the locks?  NO!

North Carolina has a very specific process that a landlord must follow when evicting a tenant.  Failing to properly follow these requirements can result in the Court refusing to evict a tenant.  When in doubt, consult an attorney.

Before filing documents with the Court, you, as the landlord, must give written notice to the tenant of the failure to pay rent, failure to vacate at the end of the lease term, or other lease violations.  Written notice must be given to a tenant ten (10) days prior to you filing court papers if you want to evict a tenant for failure to pay rent.

Once you decide to pursue eviction, you must file a “Complaint in Summary Ejectment” in Small Claims Court.  The Complaint requires that you provide specific information, including the names of the tenants identified on the lease, the address of the property for which you are seeking possession and reasons for seeking eviction.  It is best to identify the specific provision of the lease agreement has been violated.  If multiple provisions in the lease agreement have been breached, list them all!  You can also seek past rent owed, if the amount is less than $10,000.00.  (Note, this amount increased from $5,000 to $10,000 for cases filed after August 1, 2013.)

The tenant must be given notice once the Complaint in Summary Ejectment is filed. This can be done by either posting the notice at the property or by personally serving the tenant.  Be careful!  If you want the Magistrate to order the tenant to pay past rent owed, the tenant must be personally served.  Failure to personally serve the tenant will result in the Court denying your request for payment of past due rent.

A hearing date will be set in Small Claims Court, where both you and the tenant have the opportunity to present their sides to the magistrate.  Be prepared for the hearing. Bring all of the documentation with you that you will need to prove your case –including copies of the lease agreement, pictures (if they show lease violations) and notices that you sent to the tenant prior to filing the Complaint.  After listening to both sides, the Magistrate will determine whether you are entitled to possession of the premises.

Either side may appeal the Magistrate’s decision to District Court by either giving verbal notice to the Magistrate immediately upon the conclusion of the hearing or filing an appeal within ten days after the entry of judgment and serving a copy of the notice of appeal on all parties. Generally, as part of the appeal, a tenant must post a bond in the amount of the past-due rent, and must promise to continue paying rent as it becomes due.  A landlord, if it is a corporation, must be represented by an attorney at the appeal.

Effective October 1, 2013, after a defendant has perfected an appeal, the plaintiff may move to dismiss the appeal if the defendant: (1) fails to raise a defense orally or in writing in front of the Magistrate; (2) fails to file a motion, answer or counterclaim in the District Court; and (3) fails to make any payment due under any applicable bond to stay execution of the judgment for possession.  The plaintiff’s motion to dismiss must state all of the deficiencies committed by the defendant and must state that the court will decide the motion to dismiss without a hearing if the defendant fails to respond within ten (10) days of receipt of the motion.

A defendant may defeat a motion to dismiss by responding within ten (10) days by either: (1) filing a responsive motion, answer or counterclaim and serving the plaintiff with a copy or (2) paying the amount due under the bond to stay execution.  The court will determine whether to dismiss the matter without a hearing.  Contact the attorneys at Law Firm Carolinasfor assistance prior to filing the motion or response.

If there is no appeal within ten days of the hearing or you win after the appeal, you must finish the eviction process by requesting that the Clerk of Court issue a Writ of Possession. This Writ allows the Sheriff to notify the tenant that he will be seeking possession of the property within five days of issuance of the Writ.  (Note, this changed from seven to five days, effective October 1, 2013.)

If the tenant vacates the property and leaves personal possessions behind, you must store the property, and make it available to the former tenant for at least seven days.  If the tenant has not requested the release of the property within seven days, all costs of summary ejectment, execution and storage proceedings may be charged to the tenant as court costs.  (Note, this changed from seven to five days, effective October 1, 2013.)

While it is possible for you to go through the process of evicting a tenant on you own, there are dangerous pitfalls that can have serious consequences if it not done correctly. Attorneys at Law Firm Carolinashave extensive experience representing both landlords and tenants at all stages of the summary ejectment.  Contact our office today for assistance.

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