North Carolina Eviction Laws: The NC Eviction Process
Breaking News: A new law signed by the governor on 7/23/13 changes some of the information here. See our article. Most of the changes are to lengths of time in the eviction process to shorten them, and tighten loopholes some tenants were taking advantage of.
In North Carolina when a tenant hasn’t left the property after you’ve given them notice to leave for breaching the lease (typically for non-payment), the legal term for that is unlawful detainer, and the eviction process in North Carolina requires you file a detainer action called a Complaint in Summary Ejectment; other states may use different terms on their paperwork, but an eviction is an eviction by whatever name and a North Carolina Eviction requires a Summons of the Complaint in Summary Ejectment. There are several key points which you must be aware of in order to successfully evict a tenant in North Carolina:
Eviction laws in North Carolina require giving notice (demand) of the tenant’s breach – in most states this notice must be in writing and served personally on the tenant or posted to the door. North Carolina law simply says “make demand”. You could try giving an oral demand, but I wouldn’t try it. While North Carolina law recognizes to some degree oral leases, they truly are only worth the paper they’re (not) written on. Same goes for notices; do it in writing (whether called eviction notice or eviction letter, it’s making written demand). The most common thing a tenant is going to say in an ejectment hearing is that they talked to you and you agreed to this or that (doesn’t matter if you did or not). When you have a conversation with a desperate tenant, they only hear what they want to hear no matter how much of a fantasy it is. Remove all doubt with written notice. Our preferred method is to give notice on the 6th by posting it to the door and taking a picture of it. This is almost universally accepted because an eviction suit is technically a suit in rem (latin for “against the thing” – in this case to regain possession of the rental property) rather than a suit in personam (“against the person”), so posting front door notice is customary (though NC has a unique combined suit; see below). The bonus is if the tenants know a notice will be put on their door for all the world to see, it tends to motivate them a bit.
You must have the correct length of time on the North Carolina eviction notice. The notice period in the eviction process in North Carolina is 10 days; there is a section of North Carolina eviction law which talks about ending a tenancy with a seven day notice on a month-to-month lease (also giving periods for year-to-year and week-to-week). This has to do only with the end of a month-to-month lease (if a “regular” lease has ended without renewal and the tenant stays, paying monthly, then it has most likely become a month-to-month lease). So the seven day notice is for the end of the month. You can’t use this section of the law to give notice on the 10th and have it effective on the 17th. It would be effective the last day of the month. Don’t be confused.
Your eviction notice, North Carolina or in any state should contain all the essential elements. It should state the tenant’s name(s), the date, amount past due (or other breach), a demand it be paid (“pay or quit” is often used, but isn’t necessary as long as the demand is clear), or other type of breach cured, and notice of 10 days to pay/cure or face eviction. Be careful accepting partial payments after the notice has been posted. It could be argued, and quite possibly successfully depending on specific wording of the waiver clauses in the lease, that accepting a partial payment creates a need for a new notice period. Consult an attorney if in doubt.
After the notice period is up, if the tenant has not vacated or paid, eviction laws in North Carolina next require you to file a Complaint in Summary Ejectment form with the district court clerk. It’s important to note that
because of the action in North Carolina being a uniquely combined small claims matter, it must be filed in the county where the tenants reside (where the rental property is, unless that isn’t their residence somehow). More about this unique type of hearing below. The state has conveniently provided this form online at http://www.nccourts.org/Forms/FormSearch.asp (the form number to enter is 348) or you can go to the form directly by clicking here. IMPORTANT: if your property is in an LLC, corporation or other arm’s-length entity, then you aren’t the property owner/landord, the LLC, etc. is. However, North Carolina law is very friendly, allow you to file as an agent for the landlord, declaring that you have first-hand knowledge (this also means a property manager can handle matters). In many states you would have to hire an attorney if the property was in an LLC.
In most states the eviction action only concerns possession (an “in rem” suit); in North Carolina it is a small claims action which is both to determine possession and civil damages (money judgment). The first time I filed a North Carolina eviction (I was used to doing them in Kentucky) this was a pleasant surprise. Only one court cost, serving cost and hearing rather than two. Also the law specifically makes sure you are not limited just to the damages you may claim in the eviction (for example you may find additional property damages after they move out; the jurisdictional limit of North Carolina Small Claims Court is $5,000, though). Because this is a full small claims hearing, it does allow for things you don’t see in “possession only” states; for instance it’s possible for the defendant (tenant) to file a counterclaim against you. Because North Carolina looks at the whole matter (not just who should have possession), it can take several minutes and the Magistrate may look for an “equitable” decision, meaning a decision made where the law doesn’t specify what must be done so the magistrate simply tries to be fair. This can complicate things, like discussions on whether to apply the deposit to rent due (I say no, the deposit is for damages first, but a magistrate may think otherwise). Normally this isn’t an issue, but if you think the case may be a little more than “cut and dried”, it may be good to have an attorney.
There will be court costs, and there will be a fee to serve (the sheriff will attempt personal service and if unable will post the court notice to the door). The court and serving costs will vary by locale, but typically the cost of the two combined is somewhere well over $100. Upon a finding of unlawful detainer, the tenant is typically liable for those costs and they will be added into the civil part of the judgment. Be aware of filing and court dates; there will be a cut-off day to be on the next ejectment docket; miss it and you have to wait until the following docket. Larger counties may handle ejectments frequently, smaller counties maybe only once a week. The court clerk will have this information.
Show up for the small claims summary ejectment hearing with the written lease, and any other supporting documents (photos, affidavits, etc.) in hand. If you have a statement showing the payment history detailing charges, that’s good too. A magistrate will handle most ejectment cases fairly quickly, and while the magistrate will typically give the tenants a brief time to give their side, there are few things that a tenant can bring up which will stop the North Carolina eviction process. Inadequate notice under North Carolina eviction law is the primary defense, and that is mostly a question of whether you have given the proper time in your breach notice. Sometimes it becomes apparent that the agreement is actually a contract for deed (land contract), and that will defeat a detainer complaint because that involves equitable title to the property and requires forfeiture or foreclosure actions first rather than eviction (I’ve seen this happen; it is devastating, since foreclosure can take a very long time). Be aware of the pitfalls of a land contract before selling your property under one. The tenant can claim that they have paid you, but they’ll need some proof of payment for that to stick. About half the time the tenant won’t even show up and you’ll get the judgment by default. When the tenant does show up, often they will agree they owe money and then start in on what difficult circumstances have caused them to get behind. The magistrate will usually be sympathetic, but you’ll still get the judgment. Sometimes you’ll get the ones who claim as a defense that the landlord wouldn’t fix this or that; in North Carolina, unfortunately, that can be an adequate defense. The tenant is required to give you notices in this case; if they have not, they should lose. If for some reason the magistrate seems to be buying into that defense, you could try saying that this is the first you’ve heard of the alleged problem, and if it is material, you’d like a continuance to have the repair item inspected. We’ve certainly had plenty of times where tenants just made up things claiming we wouldn’t repair them. In that case, we have it inspected by a competent professional and then if turns out to be a bogus claim, we have the professional sign an affidavit (sworn written statement) that there is nothing wrong and bring that to court.
When the judge finds the tenant guilty of unlawful detainer, they will be given ten days to vacate (the day of the court hearing is not one of the ten days – that count begins on the next day). This will be the same in every case, no matter how much the tenant pleads with the judge, or how dire they claim their circumstances are, unless for some reason you are willing to go into an agreed order allowing more time. It is possible for the tenant to appeal and gain more time, but they normally have to post the rent owed as a bond, meaning they almost never appeal.
After the ten days are up, if the tenant still has not vacated the next step in the North Carolina eviction process is the last of the eviction forms; you can get a writ of possession (sometimes this is referred to as a warrant for possession). Normally that is done by taking your paperwork showing you have an ejectment judgment back to the court clerk, pay the fee (yes, another fee) and they will issue a writ of possession for the sheriff. You then take that to the sheriff, and pay the fee (yep, another fee), and the sheriff will dispatch a deputy to oversee the eviction. The sheriff’s deputy is there to enforce the court’s order, to make sure that the tenant(s) are removed from the property. North Carolina has terrible laws concerning the tenant’s property (more about unique North Carolina eviction laws below). In short, even though you gave the tenants 10 day’s notice, and then they had 10 days after the court hearing, you can’t touch their stuff for another 10 days. You have a few options; you can pay the Sheriff to remove the tenant’s possessions and store it when the writ of possession is executed . Not cheap. You can also just post abandonment notice and leave the stuff there for another 10 days after the execution. The problem I see there is if you enter the property to start cleaning and painting, that opens the door for the tenant to lie and say you took some of their stuff, even file a complaint. However, after 10 days you can dispose of it. You can “deem” that the stuff left behind is worth less than $500, in which case you can dispose of it after only five days (but what happens if the tenant disagrees on value?). The law gives no instructions on how to “deem”. A notice on the door would be good enough, I think. If you deem the stuff is worth less than $750 there is a complicated process where you can give it to a charity like Goodwill or the Salvation Army, but it’s seldom worth their effort and risk, so not likely. In my years of experience, I’ve never seen a tenant leave things behind that were worth $500, though they’ve left tons of junk behind. Naturally the tenant and I are going to disagree on the value. Usually I just take pictures of the junk, declare it worth less than $500 and that has worked out so far. North Carolina has a standard writ of possession form online at http://www.nccourts.org/Forms/Documents/247.pdf or just click here
Self eviction is not legal; you may have heard of or thought about doing things like the old classic of removing the front door, changing locks, cutting off utilities or removing the tenant’s property. In a word: don’t. You can be sued, and likely will lose, if you try these or similar tactics. You must go through the proper judicial process for a North Carolina eviction. Retaliatory eviction also isn’t legal (for instance if the tenant filed a health complaint against you or joined a tenant’s association, you can’t respond by evicting them).
In our experience, nearly all of the tenants vacate near the end of the ten days after the court order and it will be very rare you have to physically toss them with a writ of possession. When you look at the entire process, a need not to delay becomes obvious. Don’t wait until the tenant is already a month past when the rent was due to give notice, as the North Carolina eviction process will take over a month. Our policy is to post breach notice when the rent is six days past due.
More NC Eviction Law Specifics
North Carolina is not a Uniform Residential Landlord Tenant Act state. This is good in that there tends to be nothing uniform about URLTA adoption; each state changes the model, then typically allows local governments to adopt or not, so you end up with a patchwork of different laws in the state. North Carolina eviction laws are uniform statewide. Eviction laws in NC (and other NC landlord-tenant laws) can be found online by clicking here. The caveat is NC eviction laws go into a lot of detail, covering areas other states typically don’t, with additional requirements and has quite a few quirks. This means boilerplate residential leases you may find online or in office supply stores may be very insufficient in North Carolina (actually they’re usually insufficient almost anywhere; click here for a good overview). Here are a few highlights of things somewhat unique to the eviction process in North Carolina law, but it’s not a complete list:
- Forcible detainer is a crime: someone who takes up residence in your property without permission can actually be charged with a crime. In most states this is considered a civil matter, you have to go through eviction and the police won’t help at all. This North Carolina law includes that the tenant can also be charged if they give wrongful possession to someone else. Good for North Carolina.
- If it appears the tenant’s property is abandoned (they have skipped out and left stuff behind) you can post a 10-day notice after which you can dispose of it. It’s possible you might be able to take advantage of this from time to time when they skip out before you actually file the summary ejectment and save some court costs.
- Once you have the judgment if for some reason you don’t execute the writ within 30 days, you can’t accept any payments unless you intend to waive the judgment and let the tenant stay, which is really odd to me since you have a money judgment against them at that point. So, it’s wait until they are out before you attempt further collection of the judgment, or if you are willing to accept payment and let them stay, if you don’t make it payment in full and within 30 days, you’ve basically let them off the hook. If you wait more that 30 days but don’t accept any payments, then there is a special writ of possession you must use.
- Victims of sexual assault have special rights that affect landlords. They cannot be discriminated against, they can require you to change locks (they still have to reimburse you for it), etc. Domestic violence victims have similar protections you must observe.
- You are not only required to provide a smoke detector, which is common, but also a carbon monoxide detector.
- There are special eviction laws in cases of drug dealing and serious crime. It’s possible you can use these to quickly evict a drug dealer. The process is complicated, though, and likely an attorney will need to be involved.
- For breaches of the lease besides non-payment of rent, North Carolina eviction law is silent on the notice period. This needs to be spelled out in the lease, and “reasonable” under common law. The easy solution is to make it 10 days as well.
The first time or two you go through the eviction process in NC, seeking legal counsel is highly advisable, but observe and ask questions so you can learn. After you’ve done it a few times, you should be familiar with North Carolina eviction laws where it becomes routine enough you know how to evict a tenant in North Carolina and you can do a North Carolina eviction by yourself.