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235
Joan Brannon
Institute of Government
January 2006
OUTLINE ON LAW OF SUMMARY EJECTMENT
I. Definition and Grounds for Bringing Action
A. Summary ejectment is the legal procedure that a landlord uses to oust a tenant.
B. May be used to oust from dwelling, commercial building, mobile home or mobile
home space.
C. Only three instances when landlord may evict tenant.
1. Tenant violated a provision of lease for which eviction is specified.
2. Tenant failed to pay rent even if lease fails to specify this.
3. Lease has expired and tenant refuses to leave.
D. Remedy is always possession of property to landlord and sometimes money
judgment also.
E. 1995 General Assembly authorized fourth ground for eviction from residential
premises—for criminal activity.
II. Who must bring suit
A. Real party in interest is landlord (owner of the land) (G.S. 1A-1, Rule 17). Owner
must be named as plaintiff.
1. Agent or attorney may not sue in own name.
2. But don’t dismiss for failure to list landlord as plaintiff; allow plaintiff to
amend complaint listing proper plaintiff..
B. But agent may sign complaint in summary ejectment case, if landlord is plaintiff and
agent has actual knowledge of facts.
III. Service of process
A. Sheriff may serve defendant
1. personally,
2. by leaving at defendant’s dwelling with person of suitable age and
discretion, or
3. by mailing a copy first class mail to defendant and posting the summons and
complaint on the premises from which he is being evicted.
B. Plaintiff may serve defendant by certified mail return receipt requested, addressed to
defendant.
C. Jurisdiction is also established by defendant’s appearance at trial or filing an answer
or motion.
IV. Proof required of plaintiff for summary ejectment
A. Violating a condition in the lease. Landlord must prove the following four things
and may prove the fifth.
1. Landlord-tenant relationship between plaintiff and defendant.
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2. Lease provision seeking to enforce (for example, rent due on first day of
month or no pets allowed).
3. That lease specifically provides that lease is terminated or landlord may
reenter and evict for breach of the lease condition involved.
a) If written lease, must see provision in lease.
b) If oral lease, landlord must testify that he and tenant agreed when
entering into lease that if condition not met, landlord could reenter
and evict.
4. Provision breached (for example, tenant did not pay rent on time or tenant
kept a dog on premises).
5. Any damages due.
a) Unpaid rent.
b) Damages for occupancy from end of lease period to date of
judgment.
c) Special damages for physical injury to property (damages beyond
normal wear and tear).
6. Tender not allowed to stop judgment from being entered.
B. Failure to pay rent. Landlord must prove the following four things and may prove
the fifth.
1. Landlord-tenant relationship between plaintiff and defendant.
2. Terms of lease regarding amount of rent due and when due that he is seeking
to enforce.
3. Breach of lease by tenant (i.e. tenant did not pay rent on first of month).
4. That landlord made demand from tenant for rent at least 10 days before
filing lawsuit (G.S. 42-3); G.S. 42-3 protects landlords who have not
provided in their lease for automatic forfeiture with a right to reenter and
evict for failure to pay rent. Essentially, it provides that if there is no
automatic forfeiture clause so that the landlord cannot sue under A. above,
forfeiture of the lease occurs ten days after a demand for payment is made.
5. Any damages due (same as for breach of condition of lease).
6. Tender available to defendant until judgment rendered; magistrate must
dismiss the lawsuit if defendant tenders to plaintiff full amount of rent due
plus court costs (G.S. 42-33).
a) tender is an offer and ability to pay in cash the full amount of rent
due and costs.
b) defendant must bring cash into court.
C. Holding over after end of lease period. The landlord must prove the following four
things and may prove the fifth.
1. Landlord-tenant relationship between plaintiff and defendant.
2. Terms of lease regarding length (i.e. lease is for one year or lease is month-
to-month).
3. Breach of lease (i.e., term of lease has ended and tenant has not left).
4. That landlord has given defendant notice to end the term.
a) If written lease, whatever notice (if any) lease requires.
b) If tenancy for years and no lease requirement for notice, no notice is
required.
c) If periodic tenancy, proper notice given to terminate lease.
(1) year to yearone month before end of year.
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(2) month-to-monthone week.
(3) week-to-weektwo days.
(4) mobile home space60 days.
5. Any damages due (same as for breach of condition of lease).
6. Tender does not stop lawsuit.
V. Defenses by Tenant
A. Waiver of breach. If landlord accepts future rent knowing of the breach, he waives
that breach and can’t evict.
1. Waiver of breach does not apply to eviction for criminal activity.
2. If public housing authority (PHA) accepts rent knowing of a breach,
acceptance does not constitute a waiver unless PHA agrees in writing to a
waiver or takes no steps to enforce breach within 120 days.
B. Continued breach over period of time may result in modification of the lease to omit
that particular condition of the lease.
C. Tenant, of course, may offer evidence that disproves one of the elements landlord
must prove.
VI. Judgment of Magistrate (AOC-CVM-401)
A. Judgment consists of two parts: the findings and the order.
1. Findings.
a) If plaintiff proves the case, magistrate must make finding that
plaintiff proved the case by the greater weight of the evidence
and must make a finding of the undisputed amount of rent in
arrears as of the date of the judgment for purposes of the bond to
stay execution (see XIII). The finding is made whether or not a
judgment for back rent will be entered and the amount of
undisputed rent may differ from the amount the magistrate
awards in the judgment portion of the judgment.
b) If the plaintiff fails to prove the case, the magistrate must make
finding that plaintiff failed to prove the case by the greater
weight of the evidence and does not need to make a finding
about the undisputed amount of the rent.
2. Order.
a) If plaintiff proves the case and defendant was served by some
method other than posting and first class mail or if defendant
was served by posting but defendant was present at trial,
plaintiff entitled to:
(1) Judgment for possession.
(2) Daily rate of rent due until date of judgment.
(3) Other damages proved.
b) If plaintiff proves case and defendant served by posting and not
present at trial, magistrate should not award any monetary
damages. No specific North Carolina case determining whether
plaintiff is entitled to judgment for possession only or a
judgment for both possession and monetary damages, but
problem is whether statutory provision on posting applies only
to possession remedy or both and whether service by posting is
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constitutional for personal jurisdiction. The one case from
another state that decided question said not constitutional.
[Housing Authority of Atlanta v. Hudson, 296 S.E.2d 558 (Ga.
1982).] Also an Attorney General’s opinion indicates that only a
judgment for possession may be given. (Opinion to Hon.
Thomas N. Hix, February 26, 1992)
(1) If plaintiff served by posting and defendant is present at
trial, magistrate must make sure to check block in the
findings that defendant was present at trial.
c) If plaintiff fails to prove the case, enter judgment that plaintiff
failed to prove case and action is dismissed.
B. Judgment on the pleadings.
1. In one instance the magistrate must enter judgment without any
testimony from the plaintiff. The judgment is based solely on the
pleadings (i.e. the complaint).
2. The magistrate shall give judgment for possession based solely on the
filed pleadings if the following four qualifications are met:
a) The pleadings allege defendant’s failure to pay rent as a breach
of the lease for which reentry is allowed (block number 3 under
#3 on AOC-CVM-201, Complaint in Summary Ejectment);
b) The defendant has not filed an answer;
c) The defendant fails to appear on the day of court; and
d) The plaintiff requests, in open court, a judgment based on the
pleadings.
3. If the plaintiff is seeking possession based on failure to pay rent (first
block under #3 on complaint form), holding over after the end of the
lease ( second block) or criminal activity (fourth block), this law does
not apply. Under oath, plaintiff must prove that he or she is entitled to a
judgment for possession. The same is true is plaintiff is seeking
possession for breach of a condition of the lease for which reentry is
specified based on a condition other than failure to pay rent.
4. If the plaintiff also is seeking monetary damages for back rent or
physical damage to the property in an action based on defendant’s
failure to pay rent as a breach of the lease for which reentry is allowed,
the plaintiff must prove by a preponderance of the evidence any
monetary damages that are due. Only the possession part of the judgment
is granted without evidence.
VII. Kinds of Leases
A. Tenancy for years.
1. Lease for specific period or definite period of time.
2. Can be for a fraction of a year up to several years, but it has a specific
ending date.
3. No notice to vacate at the end of the tenancy required, since the parties are
aware of the ending date but lease may specify notice.
4. Holding over and paying/accepting rent after end of lease period may result
in creation of a tenancy from period to period.
B. Tenancy from period to period.
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1. Lease for an indefinite, nonfixed term that is renewable from one period of
time to the next, such as month to month, week to week.
2. Notice must be given to terminate lease at end of the period. Unless lease
provides otherwise, the following notice must be given before the end of the
term:
a) one month, if from year to year.
b) one week, if from month to month.
c) two days, if from week to week.
d) 60 days no matter what the term of the periodic tenancy if
terminating lease of a mobile home space.
C. Tenancy at will.
1. Rare type of lease that is created if no agreement has been reached between
landlord and tenant or if the lease is void or time uncertain.
2. Terminable by either party upon giving reasonable notice.
VIII. Eviction for Criminal Activity
A. Kinds of action for criminal activity.
1. Breach of condition of the lease.
2. Statutory eviction for criminal activity.
B. Action for breach of condition in lease.
1. Brought when lease prohibits criminal activity and lease contains an
automatic forfeiture clause.
2. Magistrate must read the lease provision carefully to see what it
prohibits. For example, if the lease prohibits tenant from selling or
possessing drugs and tenant’s son is caught selling drugs, the tenant
cannot be removed under the lease provision.
3. With one exception discussed immediately below, landlords evict under
the statutory provisions and not under the theory of breach of condition
4. However, public housing tenants are removed under breach of condition
of the lease.
a) Federal law–42 U.S.C. § 1437(l)(6)–requires that each ―public
housing agency shall utilize leases which … provide that any
criminal activity that threatens the health, safety, or right to
peaceful enjoyment of the premises by other tenants or any drug-
related criminal activity on or off such premises, engaged in by a
public housing tenant, any member of the tenant’s household, or
any guest or other person under the tenant’s control, shall be
cause for termination of the tenancy.‖ Thus, every public
housing lease should contain such a provision. And public
housing leases also contain automatic forfeiture clauses.
b) The United States Supreme Court held that the lease language
gives the local public housing authority the discretion to
terminate the lease of a tenant when a member of the household
or a guest engages in drug-related activity, regardless of whether
the tenant knew or should have known, of the drug-related
activity. [Dep’t of Housing and Urban Development v. Rucker,
122 S.Ct. 1230, 152 L. Ed. 2d 258 (2002).] Thus, the public
housing landlord does not have to prove fault on the part of the
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tenant in order be entitled to a judgment for summary ejectment.
Earlier North Carolina cases had required such proof. [See
Charlotte Housing Authority v. Patterson, 120 N.C. App. 552
(1995).]
C. Statutory eviction for criminal activity.
1. G.S. 42-59 to –76 authorizes landlords to evict tenants for criminal
activity without a provision in the lease prohibiting such conduct.
2. The summary ejectment action can be filed in small claims court or
district court. If filed in small claims court the normal procedure for
summary ejectment is followed.
3. General provisions.
a) The tenant is the person who entered into the lease with the
landlord.
b) This kind of eviction applies only to residential units.
4. Complete eviction.
a) The landlord must prove one of the following five things to evict
the tenant (which includes evicting everyone taking under the
tenant):
(1) Criminal activity occurred on or within the individual
rental unit leased to the tenant.
(a) Criminal activity as activity is
(i) conduct that would constitute a drug
violation under G.S. 90-95 (except
possession of a controlled substance);
(ii) any activity that would constitute
conspiracy to violate a drug provision;
or
(iii) any other criminal activity that threatens
the health, safety, or right of peaceful
enjoyment of premises by other
residents or employees of landlord.
(iv) ―Individual rental unit‖ means an
apartment or individual dwelling or
accommodation that is leased to a
particular tenant.
(2) The individual rental unit was used in any way in
furtherance of or to promote criminal activity.
(3) The tenant, any member of the tenant’s household, or
any guest of the tenant engaged in criminal activity on
or in the immediate vicinity of any portion of the entire
premises.
(a) ―Entire premises‖ means a house, building,
mobile home or apartment that is leased and the
entire building or complex of which it is a part,
including the streets, sidewalks, and common
areas.
(4) The tenant gave permission to or invited a person to
return to or reenter the property after that person was
removed and barred from the entire premises.
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(a) The person could have been barred either by a
proceeding under Article 7 of General Statutes
Chapter 42 or by reasonable rules of a publicly
assisted landlord.
(5) The tenant failed to notify a law enforcement officer or
the landlord immediately upon learning that a person
who was removed and barred from the tenant’s
individual unit had returned to the tenant’s rental unit.
b) The landlord need not prove that the tenant was at fault (See
VIII.B. above), but the tenant may raise and prove such a claim
as an affirmative defense to the eviction. If the landlord proves
one of the five grounds for eviction, the tenant may avoid
complete eviction by proving that he or she
(1) did not know or have reason to know that criminal
activity was taking place or would likely occur on or
within the individual rental unit, that the individual
rental unit was used in any way in furtherance of or to
promote criminal activity, or that any member of the
tenant’s household or any guest engaged in criminal
activity on or in the immediate vicinity of any portion of
the entire premises; or
(2) had done everything that reasonably could have been
expected under the circumstances to prevent the
commission of criminal activity, such as requesting the
landlord to remove the offending household member’s
name from the lease, reporting prior criminal activity to
appropriate law enforcement authorities, seeking
assistance from social service or counseling agencies,
denying permission, if feasible, for the offending
household member to reside in the unit, or seeking
assistance from church or religious organizations.
(3) A tenant may not successfully use one of these
affirmative defenses if the eviction is a second or
subsequent proceeding brought against the tenant for
criminal activity unless the tenant can prove by clear
and convincing evidence that no reasonable person
could have foreseen the occurrence of the subsequent
criminal activity or that the tenant had done everything
reasonably expected under the circumstances to prevent
the commission of the second instance of criminal
activity.
c) Even if the landlord has proved grounds for eviction, a
magistrate may choose not to evict the tenant if, taking into
account the circumstances of the criminal activity and the
condition of the tenant, the magistrate finds, by clear, cogent,
and convincing evidence, that immediate eviction or removal
would be a serious injustice, the prevention of which overrides
the need to protect the rights, safety, and health of the other
tenants and residents of the leased residential premises.
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d) It is not a defense to an eviction that the criminal activity was an
isolated incident or otherwise had not reoccurred or that the
person who actually engaged in the criminal activity no longer
resides in the tenant’s individual unit, but such evidence can be
considered if offered to support affirmative defenses or as
grounds for the magistrate to choose not to evict the tenant.
e) Connection between eviction and criminal charges.
(1) A landlord may pursue an eviction for criminal activity
even though no criminal charge has been brought.
(2) If criminal charges have been brought, the eviction may
go forward before the criminal proceeding is concluded
or if the defendant was acquitted or the case dismissed.
(3) If a criminal prosecution involving the criminal activity
results in a final conviction or adjudication of
delinquency, conviction or adjudication is conclusive
proof in the eviction proceeding that the criminal
activity took place.
5. Conditional eviction orders.
a) The magistrate may issue against a tenant when
(1) the landlord proves that the criminal activity was
committed by someone other than the tenant and the
magistrate denies eviction of the tenant or
(2) the magistrate finds that a member of the tenant’s
household or the tenant’s guest has engaged in criminal
activity but that person was not named as a party in the
action.
b) A conditional eviction order does not immediately evict the
tenant, but rather provides that as an express condition of the
tenancy, the tenant may not give permission to or invite the
barred person to return to or reenter any portion of the entire
premises.
c) The tenant must acknowledge in writing that he or she
understands the terms of the court order and that failure to
comply with the court’s order will result in the mandatory
termination of the tenancy.
d) A landlord, who believes that a tenant has violated a conditional
eviction order, may file a motion in the cause in the original
eviction case.
(1) That motion shall be heard on an expedited basis and
within fifteen days of service of the motion.
(2) At the hearing, the magistrate shall order the immediate
eviction of the tenant if the magistrate finds that:
(a) the tenant has given permission to or invited any
person removed or barred from the premises to
return to or reenter any portion of the entire
premises;
(b) the tenant has failed to notify appropriate law
enforcement authorities or the landlord
immediately upon learning that any person who
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had been removed and barred has returned to or
reentered the tenant’s individual rental unit; or
(c) the tenant has otherwise knowingly violated an
express term or condition of any order issued by
the court under this statute.
6. Partial eviction. Magistrate may order removal from a tenant’s premises
of a person other than the tenant (and not disturb the tenant) when the
magistrate finds that person has engaged in criminal activity on or in the
immediate vicinity of some portion of the entire premises.
a) For the magistrate to have jurisdiction to remove a person other
than the tenant (and not the tenant), the person to be removed
must have been made a party to the action.
b) If name of person is unknown, complaint may name defendant as
―John (or Jane) Doe‖, stating that to be a fictitious name and
adding a description to identify him or her.
c) Any person removed also is barred from returning to or
reentering any portion of the entire premises.
IX. Written leases
A. If lease exceeds 3 years from date of making, must be in writing and signed by party
against whom lease being enforced; otherwise it is voidable and unenforceable.
B. However, if have oral lease that is required to be written, landlord may recover
reasonable rental for period of occupancy.
C. If lease exceeds 3 years, must also be recorded with Register of Deeds to be valid
against third-party lien creditors or purchasers for value from lessor.
D. Landlord may sell premises, but buyer takes subject to lease if it is an unrecorded
lease for 3 years or less or a recorded lease for more than 3 years.
X. Selling leased premises
A. Landlord may sell premises, but buyer takes subject to lease if he had notice of it, see
IX above.
B. Tenant may ―sell‖ or assign his entire lease, but tenant still liable for lease until
landlord gives release.
C. Subleasing and assignment can be prohibited by the lease contract.
XI. Trying landlord’s title
A. If defendant admits tenancy, he cannot defend that third party, not landlord, has title
to the land.
B. If defendant desires to contest title, he must do so by written answer before trial and
case will be removed to district court.
XII. When rent payable
A. According to terms of lease, usually in advance.
B. If lease silent, not in advance but at end of term.
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XIII. Appeal
A. Must either give oral notice of appeal in open court which magistrate notes on the
judgment or must give notice in writing to clerk within 10 days after judgment
rendered and mail notice to other parties and must pay $80 appeal costs to clerk
within 20 days after judgment rendered.
B. To stay (stop) execution of judgment for possession while case is on appeal, the
defendant, within 10 days after judgment entered, also must
1. pay in cash the undisputed amount of rent in arrears as of date of
judgment
a) The magistrate is required to make a finding in the judgment of
the amount of undisputed rent in arrears so that the clerk will
know what amount the tenant must put up to stay execution.
b) If the tenant does not appear at trial and contest the amount of
rent owed, the amount of undisputed rent in arrears is the
amount of rent claimed by the plaintiff to be due up to date of
judgment. The magistrate may determine that amount from
evidence presented by the plaintiff or the amounts listed on the
face of the complaint.
c) If the tenant appears at the trial and indicates what he or she
believes is the amount of rent in arrears, that amount is the
undisputed amount of rent in arrears (even if the magistrate
doesn’t agree with the tenant).
2. pay in cash the prorated amount from date of judgment until next rental
payment is due, and
3. the tenant must sign an undertaking that he will pay future rent into the
court as it becomes due.
C. If the defendant appeals as an indigent, the defendant is not required to post the
$80 appeal costs or to pay the undisputed amount of rent in arrears as part of the
bond to stay execution. The defendant is, however, required to pay the pro rated
rent from judgment to the next rental period and pay the future rent as it becomes
due.
XIV. Security deposit law
A. Landlord allowed to take security deposit equal to
1. two weeks rent if week-to-week tenancy.
2. 1½ months rent if month-to-month tenancy.
3. two months rent if longer tenancy.
B. Landlord may also charge reasonable, nonrefundable fee for pets.
C. May use security deposit for nonpayment of rent, damage to premises beyond
ordinary wear and tear, nonfulfillment of rental period, costs of re-renting after
tenant’s breach, court costs for bringing summary ejectment action, and costs of
eviction proceeding.
D. Landlord must itemize damages and deliver list together with balance of deposit due,
if any, within 30 days after tenancy ends.
245
E. Tenant may bring action to require landlord to account for and refund balance of
security deposit; if landlord’s noncompliance was willful, magistrate may award
reasonable attorney’s fees to tenant.
XV. Late payment fees
A. G.S. 42-46 provides that in residential rental agreements in which definite time for
payment of rent is fixed, landlord can collect a late fee if all of the following three
requirements are met.
1. The parties agreed to a late fee when entering into the lease.
2. The late fee cannot to exceed greater of $15 or 5% of rental payment if the
rent is paid monthly and the greater of $4 or 5% of the rental payment if the
rent is paid weekly.
3. The late fee is to be charged only if the rental payment is 5 days or more
late.
4. If the tenant’s rent is subsidized, the late fee is determined based on the
tenant’s payment only.
B. Late fee may be charged only one time for each late payment.
1. Cannot charge late payment for second month if caused by deducting late fee
for earlier month’s late payment from second month’s rent payment.
C. A residential lease provision contrary to these provisions is against public policy of
state and void and unenforceable.
1. This means if the late fee does not comply with the statute, the landlord
cannot recover any late fee.
2. If lease calls for a late fee in excess of the allowable statutory amount,
the landlord is not entitled to any late fee even if he actually charged less
than the allowable amount. [Friday v. United Dominion Realty Trust,
Inc., 155 N.C. App. 671. 575 S.E.2d 532 (2003) (where lease provided
for late fee of $31 on a monthly rental payment of $610 (5% = $30.50),
landlord not entitled to any late fee even though actually charged tenant
only $30 late fee)
D. A lease agreement may provide for an administrative fee in addition to a late fee
if the administrative fee is for a purpose other than late payment. [Friday v.
United Dominion Realty Trust, Inc., 155 N.C. App. 671. 575 S.E.2d 532 (2003)
(court upheld $75 administrative fee to be assessed if landlord filed legal papers
against tenant).] Court implied it might look more closely if fee didn’t
reasonably relate to actual expenses. ―A lease providing for a fee reasonably
related to such an additional expense incurred not solely relating to rent being
late does not violate statute. Such a fee is not a subterfuge…‖
XVI. Tenant’s Rights and Remedies
A. Landlord must keep premises fit and habitable and must maintain in good, safe
working order and promptly repair all electrical, plumbing, sanitary, heating,
ventilating, air-conditioning, and other facilities and appliances supplied by him.
Tenant may sue for money damages for landlord’s failure to comply or may use as
set off in damages part of eviction action, but may not unilaterally withhold rent.
Tenant may be able to make repairs and deduct.
246
B. Tenant may defeat eviction action if brought in retaliation for tenant’s exercising
rights under law.
C. Landlord may not evict by self-help in residential leases; must use court; tenant may
sue if improperly evicted.
D. Tenant may sue if landlord improperly seizes tenant’s property to hold for back rent
owed.
E. Tenant who is a victim of domestic violence, sexual assault, or stalking can
require landlord to allow locks to be changed and under certain circumstances
can terminate a lease.
F. Tenant who is a member of the armed forces can terminate lease under certain
circumstances.
XVII. Vacation Rental Agreements
A. Chapter 42A of the General Statutes creates special provisions and separate
eviction process for vacation rental agreements.
B. Covered persons.
1. Vacation rental is ―rental of residential property for vacation leisure, or
recreation purposes for fewer than 90 days by a person who has a place
of permanent residence to which he or she intends to return.‖
2. It does not apply to lodging provided by hotels or motels; nor does it
apply to rentals for which no more than nominal consideration is given.
C. Requirements for vacation rental agreement.
1. Must be in writing, be signed by a landlord or real estate broker, and the
tenant must either have signed the agreement, paid money after receiving
the agreement, or taken possession of the property after receipt of the
agreement.
D. Expedited eviction procedure. Creates a special expedited eviction procedure for
a vacation rental agreement for thirty days or less if the tenant holds over after
the tenancy has expired; commits a material breach of the lease, which according
to the lease results in termination; fails to pay rent; or has obtained the property
by fraud or misrepresentation. The expedited procedure applies to an action for
possession of the premises only; the landlord must bring a separate civil action
for any monetary damages.
E. Initiating an eviction under expedited procedure.
1. Landlord or real estate broker files complaint with the clerk, or, if the
clerk’s office is closed, files complaint with the magistrate. [AOC-CVM-
204]
a) The complaint is filed in the county where the property is
located, not where the defendant resides.
2. Clerk issues summons, or if clerk’s office is closed, magistrate issues
summons. [AOC-CVM-205]
a) Magistrate or clerk must set time of trial neither less than 12 nor
more than 48 hours after complaint and summons are served on
tenant. (See section immediately below about service.)
247
3. Any law enforcement officer (in other words, city policeman, highway
patrolman in addition to sheriff) may serve complaint and summons on
tenant.
a) Officer may serve tenant personally, in other words, give a copy
of the summons and complaint to the defendant, or
b) Officer may post a copy of the summons and complaint on the
front door of the property.
c) Officer must promptly return file a return of service with the
clerk or with the magistrate, if the clerk’s office is closed.
F. What plaintiff must prove at trial. Plaintiff must prove five things at the trial.
1. The parties entered into a vacation rental agreement for a term of thirty
days or less.
2. The vacation rental agreement conforms to the requirements of the law.
3. The landlord or real estate broker gave notice to the tenant to quit the
premises before filing the complaint.
4. The tenant committed one of the four covered acts.
G. Element 1: Parties entered into a vacation rental agreement for 30 days or less.
1. The agreement must be in writing.
2. It must be to rental residential property for vacation, leisure, or
recreation to a person who has a permanent residence.
3. It must be for a term of 30 days or less. (Although a valid vacation rental
may be for a period of time up to ninety days, if the agreement is for
more than thirty days the landlord must use the regular summary
ejectment procedure, not the expedited vacation rental law, to evict the
tenant.)
4. The landlord or the landlord’s real estate broker must have signed the
vacation rental agreement.
5. The tenant must have
a) signed the vacation rental agreement,
b) paid money to the landlord after receiving the vacation rental
agreement, or
c) taken possession of the property after receiving the vacation
rental agreement.
H. Element 2: The vacation rental agreement conforms to the provisions of the law.
1. Must include a clear and conspicuous notice that indicates it is a
vacation rental agreement with an expedited eviction process and that
the tenant's signature, payment of money after receipt of the agreement,
or taking possession after receipt of the agreement constitute acceptance
of the terms of the agreement
2. Must describe the following:
a) The manner in which funds will be charged, deposited, and
disbursed before tenant’s occupancy of the premises. (The
landlord must deposit payments in a trust account.)
b) Any processing fees that will be charged.
c) The rights and obligations of the landlord and tenant regarding
accounting and reimbursement.
d) The applicability of the expedited eviction procedures.
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e) The rights and obligations of the landlord or real estate broker
and the tenant upon transfer of the property (The new law
specifies tenant’s rights when the property is transferred.)
f) The rights and obligations of the landlord and tenant regarding
mandatory evacuations. (The new law gives the tenant a right to
a refund when required to leave in order to comply with an
evacuation order.)
g) Any other obligations of the landlord and tenant
I. Element 3: The landlord or broker must have given notice before filing the
complaint.
1. Notice must tell the tenant to quit (leave) the premises by a certain time.
2. It must be given at least 4 hours before the time to leave the premises.
3. How is notice given.
a) Landlord or broker may give notice to the tenant personally,
either orally or in writing, or
b) if reasonable unsuccessful efforts were made to give personal
service, landlord may post written notice on the front door of the
property.
4. Element 4: The tenant did one of the following.
a) held over after the tenancy has expired (for example, the tenant
leased the property for two weeks and did not leave at the end of
that period);
b) committed a material breach of the terms of the vacation rental
agreement, which the agreement specified results in the
termination of the tenancy;
(1) A ―material‖ breach is one that is important or essential
to the agreement. [Webster’s New World Dictionary, 2nd
College Edition, World Publishing Co., New York
1970.]
(2) The agreement itself may declare that a breach of the
provision constitutes a material breach.
(3) If the lease does not specifically state that the provision
is material, the fact that the breach creates a physical
hazard, one that could create unsanitary conditions,
frozen pipes, risk of fire, or uninsurability would be
evidence of a material breach. [Long Drive Apts. v.
Parker, 107 N.C. App. 724, 421 S.E.2d 631 (1992).]
c) failed to pay rent as required by the agreement; or
d) obtained possession of the property by fraud or
misrepresentation.
J. Judgment. [AOC-CV-206]
1. If the plaintiff proves the four required things by the greater weight of
the evidence, the magistrate is required to enter a judgment for
possession for the plaintiff.
2. No money judgment may be issued in this lawsuit.
3. Magistrate may not reserve judgment in vacation rental eviction case.
4. The judgment must set the time by which the tenant must vacate the
property, which must be no less than 2 nor more than 8 hours after
judgment is served on defendant.
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5. The magistrate must make a finding of the amount of bond defendant
must post if defendant appeals the case and a stay of execution is issued.
a) The bond is the estimate of the reasonable damages landlord will
suffer while the case is on appeal and includes the following
items.
b) Rent that will become due while tenant is prosecuting the
appeal.
c) Damages to property.
d) Damages arising from inability to honor other vacation rental
agreements.
6. If defendant is present at trial, magistrate must give serve a copy of the
judgment on the defendant at the conclusion of the trial.
a) If defendant is not present, any law enforcement officer must
serve copy of judgment by delivering to tenant or by posting it
on the door of the premises.
b) Officer must make prompt return of service to clerk, or if clerk’s
office is closed, to magistrate.
K. Consequences of failure to leave premises as ordered.
1. Landlord may seek issuance of writ of possession, but cannot seek writ
until time for appeal has expired.
2. Failure of tenant or guest to vacate residential property constitutes
second-degree trespass. [G.S. 42A-26]
3. If tenant fails to remove personal property by time ordered to vacate,
landlord has same rights as if sheriff had padlocked property.
L. Tenant’s remedies.
1. The statute provides several remedies for the tenant if the landlord or
real estate broker violates provisions of the statute.
2. It is both an unfair trade practice and a Class 1 misdemeanor for a
landlord or real estate broker to try to evict a tenant under the expedited
eviction procedure without a good faith belief that grounds for eviction
exist.
3. A landlord who fails to comply with the statutory provisions regarding
transfer of property subject to a vacation rental agreement commits an
unfair trade practice.
4. Any real estate broker (but not landlord) who executes a vacation rental
agreement that does not conform to the provisions of the new law or who
fails to execute a vacation rental agreement is guilty of an unfair trade
practice and is prohibited from using the expedited eviction process.
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