The summary ejectment (also colloquially referred to as “eviction”) process in North Carolina is statutorily prescribed and explicitly governs the relationship between residential landlords and tenants. Although the current status remains unclear as to whether those statutes also apply to commercial leases, many commercial landlords exercise prudence and invoke the summary ejectment process as well. Trey has represented both residential and commercial tenants as well as residential and commercial landlords in various litigation matters throughout his career and is very knowledgeable about North Carolina’s Landlord and Tenant Statutes.
North Carolina Landlord and Tenant Statutes
North Carolina Private Landlord/Tenant Law Overview
The The Fair Housing Act (“FHA”) covers most housing and prohibits discriminatory conduct regarding the rental or sale of housing on the basis of race, color, national origin, religion, sex, familial status, or handicap. The U.S. Department of Housing and Urban Development is the lead enforcement arm of the FHA. The North Carolina Human Relations Commission is responsible for enforcement of North Carolina’s State Fair Housing Act, which also provides protection to its citizenry.
U.S. Department of Housing and Urban Development
Although HUD serves a variety of roles and performs a number of functions, its most visible responsibility is enforcement of the Fair Housing Act.
Charlotte Housing Authority
Gastonia Housing Authority
Statesville Housing Authority
In North Carolina, the formal name for the eviction process is summary ejectment. The grounds for summary ejectment are the tenant:
If one of those reasons exists, the landlord can notice the default and initiate summary ejectment proceedings.
For residential tenancies, summary ejectment procedures are required. Landlords are not permitted to invoke self-help remedies (e.g., change the locks of the home, turn off the utilities, or remove the tenant’s personal property). Doing so could subject the landlord to damages for emotional distress, punitive damages, and attorneys’ fees. Landlords are also prohibited from discriminating against members of a protected class (race, sex, religion, etc.) or retaliating against tenants for complaining about necessary repairs.
The first step is to read the lease and make sure you follow the default provisions. In most cases, you will need to send a written notice of default explaining the reason(s) why the tenant is in violation of the lease and allowing them the amount of time specified in the lease to cure the default. If there is no time period specified, and the right to notice isn’t otherwise waived in the lease, the law requires that the tenant be given ten (10) days to cure the default. If the default isn’t cured within the prescribed period, the right to possession or the lease itself may be terminated.
There is a difference between terminating the “right to possession” and “terminating a lease”. Terminating the right to possession only may preserve the landlord’s ability to collect future rent after actual, physical possession of premises has ended.
Review the lease and consult with a lawyer. Accepting partial payment will waive the breach unless the lease provides otherwise. In that situation, the landlord cannot initiate summary ejectment proceedings until another breach occurs (i.e., if all rent isn’t paid in full and brought current the following due date). If you are unsure about the lease provisions but want to proceed with summary ejectment as soon as possible, the safest course is to return the partial payment with a letter specifying the same to ensure there is no confusion as to whether partial payment has been accepted.
The next step in the process is to file a Complaint in Summary Ejectment and Civil Summons. The instructions contained in Compliant in Summary Ejectment form are valuable, but should not be substituted for legal advice. For instance, while you are allowed to sue for both possession of the property and damages (i.e., money owed for past due rent or damages to the property) you aren’t required to file suit for both at the same time—a lawyer can help decide which path is best suited for you.
You must file two lawsuits—(1) a Complaint in Summary Ejectment to recover possession of the premises and (2) another lawsuit in (a) District Court (for damages of $10,000 to $20,000) or (b) Superior Court (for damages in excess of $20,000) to recoup the monetary losses. Although it is not required that both suits be filed contemporaneously, prudence often dictates that is the better course. By filing and serving both lawsuits simultaneously, you only need to obtain service of process on the tenant once. Otherwise, it may be difficult to locate the former tenant for the purpose of serving the second lawsuit if they have been removed from the property and relocated to parts unknown.
Parties are not required to be represented by counsel in small claims court and landlords may be represented by property managers. However, if either side appeals the magistrate’s order from small claims court to District Court, any companies that are parties to the proceeding must be represented by lawyers. Stated differently, the president of a company that owns an apartment complex cannot represent the apartment complex in District Court unless he or she is also a lawyer.
Even if the tenant does not appear for the summary ejectment hearing, he or she still has the right to appeal the decision for ten (10) days from entry of the summary ejectment order. If the ten (10) day appeal deadline expires, and the tenant has not appealed, the next step is to file a Writ of Possession for Real Property with the Clerk of Court and pay the Sheriff’s service fee of $30. A Sheriff’s Deputy will then have five (5) days to return possession of the premises to you and you should make arrangements to meet the Sheriff’s Deputy at the premises with a locksmith.
Appeals of summary ejectment hearings are given preference on the district court docket. To perfect an appeal, a tenant must pay any past due rent found to be due and owing by the magistrate into the Clerk of Court’s Office as well as any future rent as it becomes due. If the tenant fails to pay rent within five days of the due date while the appeal is pending, the landlord may issue a Writ of Execution for Real Property and regain possession of the premises. The landlord is entitled to recover rent paid to the Clerk of Court as it becomes due and paid by the tenant during the appeals period.
Both parties have ten (10) days to appeal the judgment of the magistrate in small claims court to the District Court. The party appealing the judgment must file a Notice of Appeal to District Court and pay the required filing fee.
If the total value of the abandoned personal property is $500 or less, the landlord can dispose of it five (5) days after regaining possession of the premises. If, during that five (5) day period, the tenant requests the property, the landlord must release it to him/her during regular business hours or at a time agreed upon.
The landlord is allowed to dispose of the property, as prescribed by the statutes, seven (7) days after regaining possession of the premises. The tenant is allowed seven (7) days to request possession of the personal property and, if done, must be returned during normal business hours or at a time agreed to by them. For the landlord, prudence dictates that the requisite notice be provided as soon as possible after regaining possession of the property.
0 After the seven-day notice period, the landlord can sell the property at a public or private sale, upon proper notice to the tenant and as prescribed by the statutes. The landlord’s notice of intent to sell the property can run concurrently with the seven-day period which allows the tenant to request possession of the property.
The written notice must state the date, time, and place of the sale, and that any surplus of proceeds from the sale, after payment of unpaid rents, damages, storage fees, and sale costs, will be disbursed to the tenant, upon request, within seven (7) days after the sale and will thereafter be delivered to the government of the county where the property is located. The tenant may request return of the abandoned property until the conclusion of the sale.
A security deposit may be used only for non-payment of rent, damage to the premises, or, in the event of default, non-fulfillment of any rental period, costs to relet the premises, and costs of removing and storing tenant’s property. If not applied for those purposes, it, or any remainder amount, must be returned to the tenant thirty (30) days after return of possession of the premises to the landlord. Landlords are not allowed to use security deposit funds for normal wear and tear of the property.
Although the summary ejectment process is mandatory in the case of residential leases, the law is unclear as to whether it applies in the commercial lease context. Many commercial landlords utilize the summary ejectment process to avoid claims by tenants that their rights have somehow been violated by landlords who chose not to institute a legal proceeding.
Commercial landlords who invoke self-help remedies, such as changing the locks after a commercial tenant defaults on the lease, must be careful not to do so in any manner that would breach the peace. For example, it would be wise to do so after business hours and hire a security guard to monitor the premises for several days after the locks have been changed.