Landlords have a streamlined process in North Carolina to evict tenants who have breached their lease. This is called summary ejectment. After the tenant has breached the lease by failing to pay rent or otherwise, and after the tenant has failed to fix the problem pursuant to a grace period or period to cure, if any, in the lease, the landlord will provide a “notice to vacate,” either in writing or orally demanding that the tenant vacate the property. If the tenant leaves, it does not mean the landlord gives up any right he has to get back rent. Depending on the type of lease and the reason for eviction, the time of notice will vary. For the breach of a residential lease for failure to pay rent, 10 days’ notice is required.
After the notice period has ended, the landlord may go to court and file for a Summary Ejectment, usually on a form from the clerk of court. The complaint states why the landlord wants the tenant to move out and when and where the court hearing will be held.
The complaint must be served on the tenant. This is usually done by the sheriff or by certified mail, return receipt requested. Delivery may be in person or by tacking the papers on the tenant's door. If delivery is by tacking the papers on the door, and if the tenant does not go to the hearing, the landlord cannot get a judgment against the tenant for rent owed.
Unless there are other reasons from eviction than non-payment of rent, the tenant can stop the process by a “tender of rent” or paying the owed rent at or before the hearing.
In the summary eviction process, as well as any other small claims court action, either party has a right to appeal. The landlord or tenant has 10 days after the magistrate judge’s decision to file an appeal or the judgment becomes permanent. For low income tenants, the filing fee for the appeal may be waived; however, there still may be a fee for the sheriff to deliver the notice of appeal to the landlord. The appeal will be heard in district court, which is harder to navigate by parties without an attorney than the small claims court. Even if an appeal is filed, the tenant is under an obligation to pay rent as it becomes due, however, it should be paid to the clerk of court rather than directly to the landlord.
If the tenant appeals, about two months later, he will get a notice of the date of the district court (appeal) hearing. That hearing is similar to the small claims court hearing in that the judge will hear the facts of the case from both sides and make a decision. The district court judge can ignore nearly anything the magistrate court decided. After the district court hearing, the losing party has the opportunity to file another appeal with the North Carolina Court of Appeals. This step is seldom taken since the Court of Appeals will not consider the facts, only if the district court judge made an error of law.
If the tenant does not file for an appeal, or the tenant appeals but fails to pay the rent as it becomes due to the clerk of court, then the tenant has 10 days after the magistrate judge’s ruling to move out. If the tenant has lost an appeal, he has 30 days to move out. If the tenant has not moved out before the applicable deadline, the landlord can get a writ of possession directing the sheriff to remove the tenant and padlock the property. The sheriff will give the tenant notice of the date and time when he intends to remove you from the property, usually 2-3 days after obtaining the writ.
After the eviction and the padlocking, the tenant has 10 days to contact the landlord and arrange to move any personal items that remain. The landlord only has to give the tenant one chance to get his or her belongings. If the belongings are still there after the 10 day period, the landlord may dispose of them as he wishes.
-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation. Please contact him at (910) 772-1678.