Keep the Peace: Ejectment of Residential Tenants in North Carolina
By: Laura C. Manfreda
I recently had a frustrated client contact me with regard to a house that she was renting to an individual. The tenant failed to pay rent for two months and was still living in the rental house. The client mailed letters to the tenant demanding the past due rent but did not receive a response. The client wanted to know if she and a friend could enter the house and move the tenant’s belongings out onto the street and then change the locks. Much to the client’s dismay, I had to tell her that a landlord cannot evict or dispossess a tenant from a rental unit except by way of the judicial process known as a summary ejectment action.** That’s right, if you are a landlord and your tenant does not pay rent or fails to abide by the lease agreement, the law does not permit you to throw the tenant’s furniture out on the street and padlock the door to regain possession of the premises. If the landlord engages in such activity to remove the tenant, he or she may be subject to a lawsuit by the tenant for recovery of actual damages caused by the landlord’s actions. Additionally, recent case law provides that certain conduct by a landlord can amount to an unfair or deceptive trade practice.
A summary ejectment action is available when the tenant, without the landlord’s permission and after demand is made for the tenant’s compliance, either: (1) remains on the property after the expiration of the lease term; (2) has done or failed to do something for which the lease provides for forfeiture of the lease term; or (3) failed to pay rent. To initiate such action, the landlord files a complaint asking for summary ejectment of the tenant and the clerk of superior court issues a summons requiring the defendant/tenant to appear at a certain time and place, not to exceed 7 days from the issuance of the summons, excluding weekends and legal holidays, to answer the complaint. The summons must be served on the defendant and if the plaintiff proves his or her case by a preponderance of the evidence or the defendant admits the allegations in the complaint, the magistrate shall give judgment that the defendant be removed from and the plaintiff be put in possession of the premises and that rent or damages be claimed as due and unpaid. If the defendant denies any allegations in his or her answer to the plaintiff’s complaint, the magistrate will hear evidence and give judgment as he or she finds the facts to be.
With regard to nonpayment of rent, in all leases there is an implied forfeiture of the term on the lease for the tenant’s failure to pay rent within 10 days after a demand has been made by the landlord for all past due rent. This means that if the landlord makes a demand for payment of past due rent and the tenant fails to pay within 10 days of that demand, the term on the lease is forfeited and the landlord may initiate a summary ejectment action against the tenant to recover the premises and unpaid rent. If the tenant pays or tenders the rent due and the costs of the action before judgment by the court, all further proceedings cease.
As frustrating as it may be that a tenant is living in a rental house without paying rent, the judicial process is a quick and peaceful solution to the problem. If you are a landlord or tenant and have concerns about your rights, you should contact an attorney regarding landlord/tenant law.
** See Section 42-26 to 36.2 of the North Carolina General Statutes.
Laura C. Manfreda is an attorney with Knox, Brotherton, Knox and Godfrey. The firm’s website is www.knoxlawcenter.com. Open now is the newest office in Denver located at Hwy 16/73- Waterside Crossing. She can be reached at 704-315-2363 or 866-704-9059 (Toll free) or at lmanfreda@knoxlawcenter.com.
