Landlord/Tenant Law

Landlord/Tenant Law

Summary Ejectment (a.k.a. eviction) Overview

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.

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.