Criminal Activity as an Instance of Default in Residential Leases

Criminal Activity as an Instance of Default in Residential Leases

The Expedited Eviction of Drug Traffickers and Other Criminals Act was passed by the North Carolina Legislature in 1995 to combat criminal activity on the property of residential landlords. The Act specifically gives landlords certain eviction powers when criminal activity threatens the health or safety of a tenant, or otherwise impairs a tenant’s rightful enjoyment of the landlord’s property. The Act applies to all residential rental agreements in North Carolina, whether expressly included in a lease agreement or not, and is codified at N.G.G.S. §42-59 through §42-76.

The Act provides three eviction remedies to landlords — complete eviction, partial eviction and conditional eviction. G.S. §42-63 provides that a Court may order the complete eviction of the tenant and “all other residents of the tenant’s individual unit” named in the landlord’s suit for eviction, provided the landlord can prove any of the following:

1. Criminal activity has occurred in the tenant’s unit;

2. The tenant’s unit has been used to promote criminal activity in any manner;

3. The tenant or any guest or household member of the tenant has engaged in criminal activity anywhere on the property where the tenant’s unit is located;

4. The tenant has invited any person previously evicted and barred from the premises to return or re-enter any portion of the property where the tenant’s unit is located; or

5. The tenant has failed to immediately notify law enforcement officials or the landlord upon learning that a person who was previously evicted and barred from the premises has returned or re-entered the tenant’s unit or any portion of the property where the tenant’s unit is located.

G.S. §42-64 provides certain defenses to a tenant who has not personally engaged in criminal activity, but is otherwise subject to eviction under the Act (i.e., due to the criminal acts of household members or guests of the tenant). Such tenants can avoid eviction only if they: 1) did not know or have reason to know of the criminal activity; or 2) did everything that could reasonably have been expected under the circumstances to prevent the criminal activity.

Where the tenant named in the landlord’s suit for eviction establishes such a defense, or if the landlord does not desire the tenant’s eviction, but rather only the eviction of household members or guests, the landlord’s appropriate remedy under the Act is a partial eviction . A partial eviction occurs when the Court orders one or more persons named in the landlord’s suit other than the tenant to be immediately removed from the premises. An individual under a partial eviction order may not return to or re-enter any portion of the landlord’s property, not merely the particular rental unit that was the subject of the eviction proceeding. One benefit of a partial eviction is that a landlord can identify and remove only those specific individuals who are causing problems, rather than those tenants the landlord otherwise desires to maintain as tenants.

The third remedy available to a landlord under the Act is a conditional eviction , which is, however, available only in limited circumstances. Specifically, conditional eviction is available only when the landlord brings an eviction action against a tenant for criminal activities on the premises, but the Court determines that the criminal activity complained of was conducted by someone other than the tenant, who, although identified by the Court, was not named as a defendant in the landlord’s eviction suit. Even though the offending individual was not named as a defendant, the Court may enter an order prohibiting the tenant from inviting or even allowing such individual to return to the premises or any other part of the landlord’s property. The Court may expressly condition the tenant’s right to continued occupancy of the leased premises on the tenant’s full compliance with such order. Any violation of the Court’s order can result in immediate termination of the tenancy and eviction of the tenant.

The Act also contains additional provisions of benefit to a landlord attempting to utilize the eviction remedies identified above. G.S. §42-71 provides that potential witnesses can receive Orders of Protection from the Court upon a showing of prior acts of violence or threats of violence against the witness by any defendant or other person connected with eviction proceedings brought under the Act. Such an order can also include provisions preventing the disclosure of names or other information that would identify the witnesses being relied upon for testimony.

G.S. §42-72 provides that law enforcement agencies may make police reports or forensic reports relating to the criminal activity in question available to the landlord for use in proving its case at trial. Police officers are also available to testify as fact witnesses in any action for eviction under the Act. Please note, however, that the landlord is solely responsible for arranging for the police officer to be present and testify; and a formal Subpoena is often necessary for this purpose.

Finally, G.S. §42-73 provides that the landlord is entitled to continue collecting rent from the tenant even after the landlord has learned of criminal activity by the tenant, or the tenant’s household members or guests. The landlord’s collection of rent under such circumstances does not prevent the landlord from later filing suit against the tenant for eviction based on the criminal activity. [ Note : In all other circumstances, accepting rent payments after the landlord is aware of a tenant’s breach can prohibit the landlord from later evicting a tenant for that particular breach.]

In summary, the Act has created a clear, strong and, most importantly, useable procedure whereby landlords can effectively protect themselves, their property and their residential tenants from criminal activity. It not only provides an efficient mechanism for the landlord to evict specific tenants who are engaged in criminal activities, but it also obligates tenants to affirmatively attempt to prevent others from engaging in criminal activity while guests of the tenant. Coupled with the remedies of complete, partial and conditional evictions, the Act gives residential landlords many more practical options in trying to maintain safe and crime-free communities for their tenants than were previously available.