Javascript is disabled. Please enable Javascript to log in.
Published: 2008-03-26

Outline of Summary Ejectment and Tenant Eviction



The following is a brief outline of the procedures necessary for a Landlord to evict a tenant. The statutes and caselaw are tenant friendly and it is therefore important for a landlord to follow the statutory procedures precisely. It is also important to follow the provisions contained in the written lease, if there is one, regarding what constitutes a breach of the lease and the procedure for termination of the tenancy.

The first step is to evaluate the reasons for eviction. Many written leases provide explicit provisions regarding the manner in which a tenant may breach the lease contract. The most common of which is failure to pay rent. However, some leases provide for termination of the tenancy for reasons such as a tenant's using the property for criminal activity. If after examining the lease and a breach has occurred than the next step is to review the leases termination provision. This provision should provide the notice period, if any, a tenant can receive for failure to pay rent, and whether the lease requires notice of termination to a tenant or not. If there is not a written lease, then the landlord must follow the statutory guidelines in North Carolina General Statutes Chapter 42.

First let's examine the oral lease situation. If it is determined that the tenant has breached the lease then the landlord must notify the tenant of the breach and of the landlord's termination of the lease based on the breach. This notice should also contain a demand for possession of the property. Thus, the first step in this is to provide each tenant with a written notice of termination, which should be entitled either, "Notice to Quit and Vacate Premises", or "Notice of Termination". In this notice, the landlord must state the reason why the landlord is terminating the lease. The landlord also should make a demand for all past due rent, if this is the breached condition, make a demand for possession and state that the lease will be forfeited for non-payment of rent. The landlord must also state that the tenant has ten (10) days to quit and vacate the property. Finally, I would state that, if they do not quit and vacate, that the landlord will file a Complaint in Small Claims Court against them to force them out of the property, and that if the landlord do file a complaint, that they will be able to present a defense. Please be aware that, by statute, if they pay the back rent within a period of ten days, then the landlord must cease the action to eject the tenants. This is a statutory right of the tenant. N.C.G.S. Sec. 42-33.

If the tenant fails to quit the premises then the landlord is required to use the legal system to evict the tenant. There is no self-help right to evict for the landlord. If the landlord were to use self-help methods, the landlord could face dire legal penalties. The nature of the legal proceeding is a Summary Ejectment proceeding and is maintained in the Magistrates or Small Claims court division. After the ten day notice requirement has passed, then the landlord can proceed to file the landlord complaint against them in the Small Claims Court Division of the civil courts. The landlord can obtain the forms in Room 214 of the Civil Courts Building, which is located at 800 East Fourth Street, Charlotte. To file the action requires $34.00 as a filing fee and $5.00 for each tenant to be served. For instance, if the landlord wish to evict four tenants, it would be a cost of $34.00 plus $5.00 per tenant, or $20.00, for a total cost of $54.00. (These fees can change so be sure to call first.) The Small Claims Court will only accept cash, certified check, or money order. The landlord must also provide the court with one self-addressed stamped envelope, and an individual envelope addressed to each tenant that is also stamped. After the landlord's action is filed, there will be a hearing fifteen (15) days after filing the landlord's complaint. At the hearing, the Magistrate will hear from both sides and make a determination after hearing all the evidence.

If the landlord is successful before the Magistrate and he/she awards the landlord possession of the property and dispossesses the tenants, the tenants then have ten days within which to file an appeal. After ten days have past and the tenants have not filed an appeal to the District Court, then the landlord may file a Writ of Possession with the court, which will then be carried out by the Sheriff's Office. The Sheriff's Office will then contact the landlord to set up an appointment to change the locks on the dwelling.

This is a thumbnail sketch of the ejectment process for an oral lease situation. The fact that the landlord does not have a written lease may complicate things, however, if the landlord had an oral agreement about the length of the lease and the rent payable, testimony as to this should do.

If there is a written lease, then the terms of the written lease with regards to terminating an estate, notice requirements upon termination, and remedies can be bargained for and supersede the statutes. The North Carolina Court of Appeals in Charlotte Office Tower Associates v. Carolina SNS Corp. stated, "We concluded that G.S. 42-3 and G.S. 42-33 are remedial in nature and will apply only where the party's lease did not cover the issue of forfeiture of the lease term upon nonpayment of rent. Where the contracting parties have considered the issue, negotiated a response and memorialized their response within the lease, the trial court appropriately should be inclined to apply the statutory provisions."

What are a landlord's options when a tenant breaches for failure to pay rent? When a tenant breaches for nonpayment of rent, the landlord has several options available to it. Sections 42-28 and 30 provide three remedies: (1) possession of the premises, (2) an award of unpaid rent, and (3) an award for the tenant's occupation of the premises after the cessation of the estate. See Chrisalis Properties, Inc. v. Separate Quarters, Inc., 398 S.E.2d 628, 101 N.C.App. 81 (N.C.App. 1990). However, the landlord does not have to seek all of the available remedies in the summary ejectment action. The landlord can simply have the tenant removed in a summary ejectment action and sue in a later action for breach of contract. Section 42-28 provides, "The plaintiff may claim rent in arrears, and damages for the occupation of the premises since the cessation of the estate of the lessee, not to exceed the jurisdictional amount established by G.S. 7A-210 (1), but if he omits to make such claim, he shall not be prejudiced thereby in any other action for their recovery." This language makes it clear that an action for breach of contract can be brought after the ejectment of the tenant.

However, case law makes it clear that the landlord must not bring any claim for damages in the summary ejectment action if the landlord wishes to bring future claims. The Chrisalis court held that the necessary implication of the language of 42-28 "is that if the plaintiff does make such claims (for past rents and damages) in the summary ejectment proceeding, he shall be prejudiced in another action whereby he attempt to relitigate these claims." If the landlord brings damages claims in the summary ejectment action, then the doctrine of res judicata will bar any further actions by the plaintiff.

Therefore, it is important that a landlord be aware of the claims they are bringing during the summary ejectment action. For instance, 42-28 limits the amount of damages the landlord can claim to the jurisdictional limit of small claims court, $3,000.00. The landlord, however, may have more than $3,000 worth of damages they may wish to seek. If this is the case, then the landlord must still proceed for eviction is Magistrate court but then can file an action for damages in District or Superior court.

As for damages, the landlord has the three aforementioned options. If the landlord terminates the lease, then the tenant will only be liable for past due rent up to the point of termination and then will be liable for damages for breach of contract for any rent in the remainder of the term less any rent received by the landlord. The landlord does have a duty to mitigate his damages. If the landlord chooses not to terminate the lease but solely possession, then the tenant will be liable for future rents as well as past rents. However, it will be necessary for the landlord to attempt to re-rent the property.

After obtaining the order of eviction from the court, the tenant has 10 days to appeal the order. If the tenant does not appeal, then the landlord has to obtain a writ of possession from the clerk's office and have it delivered to the Sheriff's office. The Sheriff then has 7 days within which to serve the writ of possession. If the tenant does not take the personal belongings then in Mecklenburg County, the landlord has the option of paying $500.00 bond per room for packing plus a storage fee or the option of having the property stored on premises or off. The landlord must wait 10 days for the tenant to request a release of the property. If the tenant does not request a release then the landlord can sell the property at a warehouseman's sale and charge as a lien against the proceeds costs of the action, execution and storage.

This is an outline of the tenant eviction process. It is important to always check the written lease, if one exists, because often these circumstances will be dictated by the lease. It is also important to follow all statutory guidelines to avoid any adverse legal consequences, such as an action for damages against the landlord by the tenant.