WHAT IS SUMMARY EJECTMENT?
Now that the CDC Moratorium on Evictions is over, Landlords face the worst challenge yet. How to evict tenants properly for those who have failed to make up payments during the pandemic. The eviction process in North Carolina is called Summary Ejectment. While on its face Summary Ejectment may appear simple, complications can arise. If not done properly, you may face severe civil penalties. Below we walk through the high-level process and some of the up front tasks and a Landlord can do to ensure they are complying with the law.
Which statutes govern landlord tenant law in North Carolina?
Chapter 42 of the North Carolina General Statutes govern the landlord tenant relationship statutorily. However, Chapter 42 applies predominantly to residential Landlord/Tenant relationships. Commercial leases are governed by the lease negotiated between the parties. The rationale for this is that the General Assembly and the Courts have determined that since commercial leases are negotiated instruments between sophisticated parties, there is not as much need to protect the Tenant or the Landlord. However, Chapter 42 still governs the process by which a Commercial or Residential Landlord may evict a tenant. At no time is a Landlord allowed to engage in “self-help” methods of property recovery. Should a Landlord question whether they can unilaterally lock a tenant out of the unit, the answer is decidedly no. See generally N.C. Gen. Stat. 42-25.6 (2019).
The civil magistrates court, otherwise known as Small Claims, is the court which holds original jurisdiction over landlord tenant matters. However, if the amount in controversy exceeds $10,000 and a Landlord intends to recover funds from the Tenant, the Landlord should seek recourse in Civil District or Civil Superior Court depending on the amount in controversy. The appropriate venue is the County in which the Defendant resides.
Almost all residential ejectments begin in Small Claims. The filing fee for small claims is $96.00 for a Complaint in Summary Ejectment. A service fee of $30.00 per defendant is also included for service of process. Rule 4 of the North Carolina Rules of Civil Procedure applies to the service of the Complaint in Summary Ejectment, thus personal service must go through the Sheriff of the County in which the Defendant resides. N.C. Gen. Stat. 42-29 (2019).
Four reasons for ejectment.
Failure to Pay
There are four reasons a Landlord may file a complaint for summary ejectment. The first is failure to pay rent for a period of more than ten days after demand by the Landlord. See N.C. Gen. Stat. 42-3 (2019).
The second is when a tenant has held over, or stayed longer, after the lease has expired or been terminated. Section 42-26 states that a tenant who has held “over and continues in the possession of the demised premises, or any part thereof, without the permission of the landlord, and after demand made for its surrender, may be removed from such premises…” N.C. Gen. Stat. 42-26 (2019). Therefore, according to the statute, the Landlord must inform the tenant they remain without permission. You should review the lease carefully. You should also ensure the landlord has not accepted any rent from the tenant which may indicate that a new leasehold interest has started before proceeding with this claim. If a Landlord has accepted rent, or if the tenant has not been notified the leasehold interest has ended and demand for possession has not been tendered, the Landlord, or its counsel should make such demand prior to moving forward with the ejectment.
Breach of Lease Other Than Non-Payment
The third is when the defendant has allegedly breached a condition of the lease for which re-entry of the Landlord is proper. Prior to proceeding under this course, it is important to review the lease for any notice and time to cure provisions under the lease agreement. This course is a simple breach of contract argument housed under Landlord Tenant law. If a Tenant has failed to perform some obligation which they agreed to perform, then they are in breach of the lease. A common example is pet sitting or owning a pet in the unit without the Landlord’s consent. If the tenant was notified of the breach and failed to cure the issue in accordance with the terms of the lease, the Landlord may move to evict.
The fourth is governed by Article 7 of Chapter 42, otherwise known as the “Expedited Eviction of Drug Traffickers and Other Criminals”. This fourth option is reserved to allow the expedited eviction of a tenant who has engaged in any level of criminal activity, as defended by the statute, regardless of whether they have been convicted yet or not. Section 42-59.1 states the purpose of the article in that:
The General Assembly recognizes that the residents of this State have the right to the peaceful, safe, and quiet enjoyment of their homes. The General Assembly further recognizes that these rights, as well as the health, safety, and welfare of residents, are often jeopardized by the criminal activity of other residents of rented residential property, but that landlords are often unable to remove those residents engaged in criminal activity. In order to ensure that residents of this State can have the peaceful, safe, and quiet enjoyment of their homes, the provisions of this Article are deemed to apply to all residential rental agreements in this State.
N.C. Gen. Stat. 42-59.1 (2019). Therefore, as a matter of public policy, if a Landlord has a tenant who has engaged in the types of criminal activity defined in Article 7, the Landlord may proceed with an eviction without notice and posthaste. This statute is extremely limited and you should review it carefully with your legal counsel before pursuing an action under this section.
Filing the Ejectment.
Once confirming the Landlord has met the statutory requirements for filing in accordance with the above, there are several forms which need to be filed along with the complaint.
Small Claims Summons
Each named tenant on the lease is a defendant. You cannot name just one party living in the premises. If the individual is listed as a tenant, not simply and authorized occupant, then they are considered a defendant in the case. The summons is then served in accordance with Rule 4 of the North Carolina Rules of Civil Procedure.
Servicemember’s Civil Relief Affidavit
The Servicemembers Civil Relief Act is a federal act in Chapter 50, Title 50 of the United States Code. Its purpose is to ensure that those serving in the United States’ Military are not unjustly issued judgments or other civil verdicts without the opportunity to defend themselves. North Carolina codified this in N.C. Gen. Stat. 127B-28. This affidavit is accompanied either by a verification on the Servicemember’s Civil Relief Act Website (https://scra-e.dmdc.osd.mil/scra/#/home) or by sworn testimony from an individual with knowledge of the facts as to whether the defendant is or is not in the military. The Landlord should provide the birthdate or social security number of the defendants for the purpose of this search..
Complaint in Summary Ejectment
The complaint outlines the case against the tenant and makes claim for any monetary damages. The form is relatively short, but the Landlord should plan to provide a copy of the Lease, a recent ledger, and any correspondence between the Landlord and the Tenant when the complaint is being prepared.
When can I expect hearing?
Section 42-28 states that the Clerk “shall issue a summons requiring the defendant to appear at a certain time and place not to exceed seven days from the issuance of the summons, excluding weekends and legal holidays…” N.C. Gen. Stat. 42-28 (2019). However, most hearings will occur between 10-14 days after filing.
What does the hearing entail?
Most magistrates hearings are relatively brief. While the rules of civil procedure and rules of evidence are important, most Magistrates are attempting to determine the truth and determine the most appropriate outcome. They will allow evidence and testimony which might not ordinarily be permitted. This is not an attempt to override the system of justice, but small claims are courts of equity, so rules are relaxed to ensure all parties have time to present their evidence in the best way they can.
The Magistrate will call the case and ask each party to present their evidence. Once all evidence is presented the Magistrate will make their findings of fact and enter their Order.
What if I am not happy with the results?
A party has ten (10) days to appeal the decision of the magistrate. N.C. Gen. Stat. 42-34 (2019).
If you are a Landlord and have questions about rent recovery or questions about the summary ejectment process we would be glad to assist you. Please call 919-934-0049 to schedule a consultation.