How does a landlord evict a tenant?
The landlord cannot lock out a tenant without going through the court process. A landlord must file court papers, have a hearing in small claims court, and get an eviction order. After the landlord files the court papers, the sheriff mails the papers to the tenant, delivers them to the tenant, or posts the court papers on the front door. The small claims court hearing is usually heard during the same week that the court papers are filed. This means that tenants may not get the court papers in time to get to the hearing, or they may not be prepared to defend against the eviction.
Can a tenant appeal an eviction order?
Yes. Even if a tenant misses a court date or loses in small claim court, the tenant may appeal the eviction order. Tenants who file an appeal will get a new trial in district court in front of a different judge.
When must a tenant appeal an eviction order?
A tenant must file an appeal of the eviction order no later than ten (10) calendar days after the magistrate or small claims judge orders the eviction in court. The 10 days includes Saturdays, Sundays, and holidays. If the tenth day is a Saturday, Sunday, or a holiday, then the tenant has until the next business day to file an appeal.
If the court does not announce the eviction order the day of trial and mails it to the tenant instead, the tenant gets thirteen (13) days from the day the eviction order is entered.
Is there a fee to file an appeal? How much does an appeal cost?
It usually costs $150 to file an appeal in court. You may not have to pay these court costs if you receive food stamps, Supplemental Security Income (SSI) or cannot afford this fee. In the following section, see "Petition to Proceed as an Indigent" in the numbered list to learn how to ask the clerk of court to waive or forgive the court costs.
What forms or court papers are required?
There are three (3) important court forms for tenants who want to file an appeal. These forms are found on the NC Courts website.
- Notice of Appeal (download the form): This form lets the court and landlord know that the tenant is appealing the case. The tenant must mail or hand-deliver a copy of the Notice of Appeal to the landlord when the appeal is filed.
The tenant must fill out and sign the Certificate of Service section on the back of the Notice of Appeal form. If not, the court may dismiss the appeal.
- Petition to Proceed as an Indigent (download the form): This is a fee waiver form. It allows the tenant to file the appeal without paying the $150 court costs. It also allows the tenant to appeal without paying all of the rent that may be due (as described in the "How much is the rent bond?" section below). The court will usually allow a fee waiver if the tenant receives Supplemental Security Income (SSI) payments, TANF, or food stamps; if the tenant is represented by a nonprofit legal services organization; or if the tenant swears under oath that he or she is otherwise unable to afford the court costs of the appeal. In some counties, clerks may require proof that the tenant cannot pay the court costs (like a copy of the tenant’s EBT card or a Social Security award letter, or an affidavit called a Civil Affidavit of Indigency). The Petition to Proceed as an Indigent — and the Civil Affidavit of Indigency, if required — must be notarized.
- Bond to Stay Execution (download the form): This is the form that the tenant submits with the rent they pay to the clerk of court. A tenant who pays the rent bond can stay in the home until the new court date.
How much is the rent bond?
The rent bond will be different for every tenant who appeals. The amount of the rent bond will depend on these factors
- Tenants must pay any undisputed or back rent they owe except when they do not have to pay the court costs. This means that the clerk of court has waived the court costs because the tenant is indigent.
- Tenants who are being evicted for nonpayment of rent must pay a pro-rated amount of rent calculated from the day the judgment was entered to the end of the month, if the judgment date is five (5) days or more before rent is next due.
- ALL tenants must pay their monthly rent within five (5) business days of when it is due.
Tenants who receive a rental subsidy, like Section 8, only pay their portion of the rent. Again, these payments are made to the court, not the landlord.
Tenants who do not pay the rent bond on time may be evicted. The appeal will still go to trial before a new judge.
Is there help for a tenant to fill out the court form?
Legal Aid of North Carolina recorded this step-by-step tutorial on how to fill out all three forms.
What happens if a tenant misses the appeal deadline or a bond payment?
If a tenant does not file an appeal in time or misses a bond payment, the landlord may file a Writ of Possession. The Writ is an order that directs the sheriff to remove the tenant from the property, then the landlord will change the locks. If a tenant is late on a bond payment, the court may accept it so long as the landlord has not filed the Writ yet.
The landlord must let the tenant into the property one time during regular business hours to remove any remaining belongings for seven (7) days after the lockout (unless the belongings are worth less than $500, in which case the tenant gets five (5) days). After that, the landlord may dispose of the belongings.