Residential Evictions Must Be Handled Through Court
By Andrew Cogdell, Esq. and Kelley Bonfoey, Esq.
Column #194; April 1, 2005
North Carolina’s eviction laws require court proceedings whenever
a residential tenant does not move voluntarily. Landlords may only evict
or attempt to evict a tenant by taking him to court.
Enacted in 1981, these laws prohibit landlords from attempting to evict
or evicting a tenant by shutting off his water, gas, or electricity,
changing the locks or padlocking the premises, removing the doors and/or
windows, or otherwise forcibly entering the premises and removing him
and/or his belongings. These actions, sometimes referred to as “self-help
measures,” are taken most often in response to a tenant’s failure to
pay rent.
The primary purpose of these laws is to maintain the public peace. By
requiring the use of the courts, these laws also provide tenants with
an opportunity to present any available defenses. Finally, any lease
or contract provision contrary to these laws is void as against public
policy.
Our state’s eviction laws offer tenants other protections as well. If
a landlord seeks to evict a tenant through any means other than the
required judicial process, then the tenant may have a claim against
him for money damages. In addition, the tenant may be entitled to continue
living in, or regain possession of, the rental unit.
Also, a landlord does not have a security interest in a tenant’s personal
property, and he may not seize a tenant’s belongings to satisfy any
obligation. North Carolina has never recognized the common law remedy
of distress and distraint; it is specifically prohibited by statute
in residential tenancies. A landlord’s seizure of, or interference with,
a tenant’s personal property, except as specifically permitted in certain
limited circumstances, may give the tenant a claim for recovery of possession
of the personal property or damages for its loss.
In 1995, the North Carolina Supreme Court held that landlords who resort
to self-help measures to evict a tenant may also be liable for treble
damages and attorney’s fees under our state’s unfair trade practices
statute. Alternatively, based on a recent Court of Appeals case holding
that landlords are debt collectors under our state’s unfair debt collection
practices statute, the same wrongful conduct may subject landlords to
civil penalties of up to $2,000.
If a landlord wants to evict a tenant who will not leave voluntarily,
then he must file a Magistrate’s Summons and Complaint in Summary Ejectment
in Small Claims (Magistrate’s) Court. The tenant must be served with
the Summons and Complaint by the Sheriff’s Office, either personally
or by posting. The Summons will state the date, time, and place for
the court hearing. Small Claims Court hearings are informal, but both
parties may have an attorney, present evidence, and subpoena witnesses.
The tenant may have defenses to the eviction action depending upon which
basis for eviction the landlord sets out in the Complaint. The tenant
may also file written counterclaims against the landlord. Examples of
such counterclaims include: 1) a rent abatement for the landlord’s failure
to make repairs for which he was responsible, after having been properly
notified by the tenant; and 2) money damages if the landlord attempted
to evict the tenant illegally and damaged him in some way.
Either party has ten days in which to appeal the magistrate’s decision
to District Court for a new trial. During this ten-day appeal period,
the landlord cannot make the tenant move. If the tenant properly appeals
the judgment to District Court and pays the rent when due to the Clerk
of Superior Court, then he can retain possession of the premises. The
tenant may also be required to pay any undisputed past-due rent to the
Clerk of Court, unless he files the appeal as an indigent.
If the eviction is based upon nonpayment of rent and the judgment is
entered more than five working days before the day when the next rent
payment is due under the lease, then the tenant must also pay the pro-rated
rent for that time period to stay execution of the magistrate’s judgment
for possession pending trial.
If the tenant does not appeal the magistrate’s judgment within ten days
or loses on appeal, then the landlord may evict the tenant by obtaining
a Writ of Possession of Real Property issued by the Clerk of Court.
The writ directs the Sheriff to physically remove the tenant and his
personal property from the premises. The Sheriff, not the landlord,
is the only one who can remove the tenant and/or his personal property
from the rental premises. The landlord cannot force the tenant to move
at any stage of the eviction process.
Additional information on housing and evictions can be found on the
Legal Aid of North Carolina website,
www.legalaidnc.org.
Andrew Cogdell and Kelley Bonfoey are attorneys with Legal Aid of
North Carolina and serve on the Legal Aid Housing Law Task Force. “The
Law and You” is a regular publication of Legal Aid of North Carolina, a nonprofit
program that provides free civil legal assistance to poor and low-income
residents of North Carolina.
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Legal Aid of North Carolina office or a private attorney if you need to speak to
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Legal Aid of North Carolina is a statewide, nonprofit law firm that
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