Eviction Process

The Art of Eviction

The Art of Eviction! No matter how great your screening process is, occasionally you will run across the need to go through with the eviction process. First off, there are other terms you may run across while doing this so here we go. Before diving into something we must define it. Websters dictionary defines eviction as the following:

• e·vic·tion

• [iˈvikSH(ə)n]

• NOUN

• the action of expelling someone, especially a tenant, from a property; expulsion:

• "the forced eviction of residents"

• synonyms:

• expulsion · ejection · ousting · throwing out · drumming out · driving out · banishing · banishment · removal · dislodgment · displacement · clearance · dispossession · expropriation · defenestration · ouster · outing

Now we have a clear definition of eviction, let us move on to determine when it should happen. There are some differing schools of thought here. Some more rigid by the book proprietors begin the eviction process immediately upon the first day possible in event of non-payment. Other entrepreneurs may listen to the tenants and want to help their tenants out. Most states will have some type of Pay or Quit notice required and the waiting period to begin eviction will vary from state to state. My recommendation on the "Pay or Quit Notice" is to post, mail or serve, whatever your state requires as soon as it should be served, mailed, etc. Starting the eviction process quickly will save you time and money rental after rental.

Once you serve the notice at least you have begun the process promptly. If you think you should work with the tenant, then you are not obligated to evict simply because you served the Pay or Quit. You can still choose to do so. This is where an inexperienced and even occasionally an experienced landlord can be off on a wild goose chase if you are not extremely careful and vigilant when it comes to the situation at hand. Yes, there are some folks that get down on their luck and occasionally we do need to help those less fortunate than we are but there are often those who continually put themselves into bad circumstances because of bad choices.

I have been at this occupation for nearly 25 years. That is exactly what this is too, a job. Do not let any video on Facebook lead you into thinking that real estate is just a passive income. I have heard the videos as well and it's all just lollypops and rainbows followed by unicorns and magical princesses.

Now that I have placed my blurb for the day I'll get back on topic. Yes, helping a tenant. If you are an experienced investor, then you probably already know this but for the newbie I'm going to put this out there. Never place yourself purposefully into a position where you can lose money. I have helped a select few along the way that stayed and continued renting from me, but most were long term tenants already that had a history of good payment and just fell into a slight bind. Every one of these caught up quickly and didn't come with a sob story but rather a slight need and an explanation of how and when we would get straight with each other. Every time. Not some time but EVERY TIME.

Now we have the more common example. Typically, it will begin around month 2 or 3. Sometimes it may wait until 4. Excuses of why it's not quite what it should be. Maybe 30 dollars short. A 50 here and there and so on. Then it doesn't come in until the middle of the month at which point it will progress in amount and time to wait. You are being tested make no mistake. These are professional tenants. Go ahead and start the Pay or Quit and move right into the eviction. Occasionally they will catch you up and get on the right path, but it will never happen until you take control of the situation. I have found myself in this situation more times than I can count over the years. I am here to tell you from experience, it will only get worse. They do not need your help they need to use you and if you aren't careful, you will help them do so.

This advice is pre covid and mind you many states have made evictions harder during the pandemic and havn't went back to business as usual yet. Read this as in a normal environment but still the advice would be the same. Once you realize that your tenant isn't going to pay you correctly begin the process, get them out and move on. I assure you it will be easier for you in the long run.

Thanks for the quick read. This is my advice, David V, The original and official, Underground landlord! Check us out at https://www.undergroundlandlord.com 

Covid caused a lot of unsettlement and problems for a large chunk of the world. Businesses went bankrupt and shut down, people lost their jobs, and the economy crashed. The prices of oil went into the negative for the first time in the history of the world. It was absolute chaos.

The time post covid for landlords and tenants has been unsettling. The entire world has been turned upside down and shaken. Let us take a look at how Covid impacted landlords and their tenants.

The chaos starts

When Covid hit, many companies struggled to stay afloat. People stopped leaving the house out of fear or mandate, and because of this, the economy of the entire world suffered. People stopped going out to malls and shops and subsequently stopped buying as many products. Even home deliveries were at an all-time low. When Covid started spreading, no one had full information on the virus. People didn't know whether it would spread through sneezing, coughing, and the air. It was being speculated whether surfaces and packages could carry the virus too, and not many people were up to risk it.

Losing jobs

The economy took a big hit during Covid, and so did many individual companies and businesses. Many of these companies started downsizing and letting off their employees. Paying extra (or even necessary) employees is costly, and businesses were trying to cut their costs as much as possible to prevent shutting down. So, many people, regardless of the fact that they were good at what they did, were fired. To make matters worse, many of these people were not given a warning in advance.

Subsequent losses

Losing your job is already a big deal, but with no prior warning? You may be in big trouble if you don't have much in savings and can't hold off till you find another job (that even in Covid, when employers were certainly not looking to hire), paying rent on time becomes a big issue. When tenants don't pay rent on time, their landlord may want to evict them so they can rent out that space to someone else and create a source of income.

The landlords POV

As a tenant, this seems very unfair. First, you lose your job, and then your home too? However, from the landlord's point of view, they may be someone who has lost their job as well and now depend on the rent they get from their tenants to support their family. Or perhaps, the rent they get from their tenants is their primary source of income. So, even if a landlord tries to be understanding, compassion will not pay their bills.

Where from here

Once a tenant has been evicted, they become the government's responsibility. The government will allot them housing if they don't have any family they can live with. However, there is a plethora of problems with this housing that is allocated to such people. The housing is extremely substandard and usually has many problems with the plumbing, flooring, gas, electricity, etc. Along with this, these houses are usually located in high-crime neighborhoods, where the risk of getting robbed or attacked is far higher than in other neighborhoods.

The feeling of displacement

People who are evicted face psychological trauma and the risk of suicide increases. The process of eviction is also usually very quick. Once your landlord sends you the notice, you typically have to move out within a couple of days. It becomes very difficult to move out all your belongings in just a matter of days, especially when you have no idea where you are going to put them.

If you don't have another place to stay, you would essentially have to keep your things out on the road or in storage (which would also cost you money). This would be an added tension, as the tenant would feel displaced and unsettled.

Problems for children specifically

Tenants who are forced out of their houses may also face the problem of being unable to send their children to school. If they don't have a roof over their head, they can't be expected to pack their books and lunches and head off to school. Because of this, they will miss more days at school, which will be detrimental to them and deter their academic progress.

Children may not have access to proper food as they did when living in a home. This may lead to malnourishment and affect their academic performance, as well as their health and well-being in a general sense.

Credit Sheet

Being evicted due to late rent payment or nonpayment of rent goes on an individual's credit sheet and brings down the score. Landlords review this credit sheet before allowing a potential tenant to rent their property. This process is called tenant screening and is a thorough process. If a tenant's score is below 650, landlords are unlikely to offer them the place.

An eviction on your credit sheet history also looks terrible, especially if the reason behind it is nonpayment of rent. Other landlords would also be wary of letting their property out to you and may not trust you to pay the rent on time again, making it harder to find a place to live.

Conclusion

It has become increasingly difficult for landlords and tenants alike since Covid hit. The screening process must be more intensive, but from the tenant's point of view, some things just aren't fair, and sometimes there is not much the tenant can do about it. 

The  Underground Landlord

North Carolina (NC) Eviction Process

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North Carolina Eviction Process first step is serving the tenant that has not paid rent an Eviction Notice. In North Carolina, nonpayment of rent is the most common reason for eviction. In this case, you are required to give the tenant a 10-day "notice to quit." The notice informs the tenant that they need to pay the rent due within 10 days. Otherwise, they will be evicted. This notice must demand the rent, and give the tenant 10 days to pay it before a Summary Ejectment (Eviction) Complaint is filed.

Landlords you will need to give the Tenant a Notice when they did not pay Rent - This notice is called a 10 Day Demand for Rent.

North Carolina Eviction Laws

The North Carolina Eviction Process, Landlord Tenant and Eviction Laws are found in Chapter 42 of the North Carolina General Statutes. These are the laws passed by the North Carolina Legislature that spell out the duties and remedies in the Landlord Tenant relationship. If you are a landlord in North Carolina, it is a very good idea to take the time to read and become familiar with these laws. This page has information useful for procedures for Evictions in North Carolina, when you need more help select Landlord help pages or Tenants help pages for even more information.

Top Questions: How Long Does It Take to Evict a Tenant in North Carolina? Pursuant to North Carolina law, a landlord may, following successful judicial proceeding, forcibly evict a tenant seven days after the filing of a writ of possession.

North Carolina Eviction Notice

The first step in the North Carolina Eviction Process is giving the tenant an Eviction Notice. If the landlord is evicting the tenant for non-payment of rent (most common reason), then the notice must demand the rent, and give the tenant 10 days to pay it before a Summary Ejectment (Eviction) Complaint is filed.

Landlords you will need to give the Tenant a Notice when they did not pay Rent - This notice is called a 10 Day Demand for Rent.

If the tenant is being evicted simply because they are staying beyond their lease term (called a holdover), and the landlord told them that the lease would expire and they would have to move out, then the time period in the notice is different. So for a landlord to evict a tenant for a holdover, the notice period is as follows:

10 Days if the tenant paid rent monthly

1 Month if the tenant paid rent yearly

30 Days for Mobile Home lot rental

When the landlord is evicting you and the eviction is not because of breach of the rental or lease agreement, your landlord must tell you in advance of his intent to evict you and to end the lease agreement.

The amount of notice given and whether it is correct can be complicated. In some specific situations, it is very simple, and the lack of proper notice may be the basis to dismiss the complaint.

If there is a written lease agreement, the requirements of the lease must be followed. If the lease requires 30 days prior notice, this means, that the landlord before filing the complaint must give you notice 30 days before the end of the rental term.

For example:

If the landlord gives notice on the 10th of the month and files the complaint on the 30th of the month, this notice is incorrect because the landlord did not give the tenant 30 days before filing the complaint.

If there is no lease or the lease does not specify the requirements of the notice to evict then:

the notice can be oral

the notice must follow the requirements of the law

North Carolina law requires the Serving the Tenant with a Notice to Quit, find the notice to evict on our Forms pages.

For non-payment of rent, 10 days

A year-to-year lease, 30 days

A month-to-month lease, 7 days

A week-to-week lease, 2 days (not counting weekends)

In case of non-payment of rent, if there is no written lease specifying the type of notice, the landlord must demand payment of the rent and wait 10 days before filing the complaint.

Summary Ejectment

In the North Carolina Eviction Process, case is called "summary ejectment." Landlords can file to legally remove a tenant rented property if the tenant has failed to pay rent, violated the lease agreement, or if other...

After the landlord has given the tenant the proper Eviction Notice and has waited out the notice period, the landlord now must go to court and file a "Summary Ejectment" case to evict the tenant if they are still in possession of the property. It is illegal for a landlord to physically evict a tenant without going through court procedures. The landlord should go to the Small Claims court in the county where the property is located. The landlord should ask the court clerk for the Complaint form to file a Summary Ejectment case. There will be a filing fee to do this. Once the landlord files the case and pays the filing fee, the court will issue a Summons.

In North Carolina the eviction process is called SUMMARY EJECTMENT.

The first step is to notify the tenant that he or she must move out by a specific date. This is known as the "notice to vacate". The notice may be oral or written. The number of days' notice required by law depends on the type of lease and reason for terminating the leave. For non-payment of rent, 10 days' notice is required.

After the notice period has ended, the landlord may go to court to take out Summary Ejectment papers. The court papers state why the landlord wants the tenant to move out and when and where the court hearing will be held.

The court papers must be delivered to the tenant. This is usually done by the sheriff. 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.

If the only reason for eviction is non-payment of rent, the tenant can stop the eviction by taking the rent owed to the court hearing and offering it during the hearing. This is known as "tender of rent".

After the magistrate makes a decision, either the landlord or the tenant may file an appeal. The appeal must be filed within 10 days after the magistrate's decision.

If the tenant files an appeal and is very low-income, he or she will probably not have to pay filing fees. However, there may be a fee for having the sheriff deliver the appeal papers to the landlord, and the tenant must pay rent into the court as it becomes due.

If the tenant perfects the appeal according to the requirements of the law, but failed to raise a defense in magistrate's court, failed to file a responsive pleading in the district court action, and failed to make any payment when due under the appeal bond, the landlord may file a motion to dismiss the appeal, and the court must grant the motion to dismiss without a hearing, if the defendant does not file and serve a response or make the required payment within ten days.

If the tenant does not move out by the date specified in the writ of possession, the landlord can have the sheriff padlock the apartment or house. The sheriff usually tries to give the tenant a couple of days' notice before the padlocking.

After padlocking, the tenant has 7 days to contact the landlord and arrange to move his or her belongings out. The landlord has to give the tenant only one chance to get his or her belongings. If the belongings are still there after the 7-day period, the landlord may dispose of them as he wishes.

Sheriff Serves the Summons and Complaint

Once the eviction case is filed, the court will give a Summons and a copy of the Complaint to the County Sheriff. It is the County Sheriff's job to deliver these documents to the tenant. These documents will tell the tenant when and where the eviction court hearing will be. The Summons will require the tenant to appear not more than 7 days from the issuance of the Summons. The Sheriff may serve the Summons by mail or in person within 5 days of issuance of the Summons, but not less than 2 days before the scheduled hearing.

If a judgment for possession or eviction is entered against you, you have ten (10) days to appeal the judgment to District Court. If you do not appeal, you should try to move out within the 10-day appeal period. If you do not move, the landlord can obtain a writ directing the sheriff to remove you and padlock the rental property. The sheriff will proceed as follows:

The sheriff will generally try to give you at least a day's notice of the date and time when he intends to evict you and padlock the property.

No more than five (5) days after the landlord obtains the writ, the sheriff will come to the rental property to padlock the premises.

You and all occupants of the rental property will be asked to leave the property.

After you have left the property, you cannot go back without the landlord's consent. If you try to re-enter the property, the landlord can charge you with trespassing.

If some of your personal possessions remain in the rental property after the sheriff has removed you:

You have five (5) to seven (7) days from the date of padlocking to remove your possessions. The shorter 5-day period applies if the possessions left in the rental home are worth less than $500.

You must contact the landlord to make arrangements to remove your possessions.The landlord must give you an opportunity to return to the rental property during normal business hours. You should remove all of your possessions at one tme.

If you fail to remove your belongings before the end of the five (5) or seven (7) day period, then your landlord can dispose of your property.

Hearing in Front of Magistrate Judge

The landlord must be at the hearing that is set in order to win the eviction. The tenant must show up in order to contest the eviction. Each side will have an opportunity to tell their side of the story, and to present documents and witnessess as evidence. It is recommended that the landlord bring as much evidence as possible in order to win. At the end of the hearing the Magistrate will make a decision. The Magistrate can order the tenant to move out, award money damages (for back rent or damage to the property), or both.

If you are being evicted for non-payment of rent ONLY, then you can stop the eviction by paying the rent and court costs at the hearing. This is called "Tender of Rent."

You can tender the rent if the landlord in the complaint has ONLY MARKED the first box in Paragraph #3 of the complaint which states: "The defendant failed to pay the rent due..."

You cannot tender rent and get the case dismissed if the landlord is evicting you for other reasons such as, breach of the lease or holding over at the end of the term.

At the hearing, you must bring the full amount of rent owed plus court costs and tell the magistrate that you are ready and able to pay it to the landlord.

You must offer the rent and court costs before the magistrate renders the judgment.

If you dispute the amount of rent owed, then ask the magistrate to determine the past due amount. Once the magistrate determines the amount owed, but before the magistrate renders judgment, you should offer the rent and court costs.

CHECKLIST

Determine the amount of rent owed.

If the amount of rent disputed produce all receipts showing how much you have paid.

Find out the amount of court costs.

Bring the rent owed and court costs to court (cash or money order)

Offer the rent owed and court costs to the Magistrate before the entry of judgment.

Judgment for Possession

If the landlord wins the eviction case, the magistrate judge will award the landlord a "Judgment for Possession." This is a court order that says the landlord is entitled to possession of the property and that the tenant has to vacate. The magistrate judge can also award a "money judgment" that says the tenant must pay the landlord a certain amount of money.

IF YOU DON'T FILE AN APPEAL (or if you miss a rent bond payment)

You may be forced to leave within less than a week of the appeal/payment deadline.

The sheriff may send you a notice in the mail stating the exact date and time when you will have to leave (often referred to as the "padlocking" date).

You should remove all of your belongings from your residence before the padlock date.

If you do not remove all of your belongings

If you still have belongings in the residence after the padlocking, you should contact your landlord immediately to make an appointment to get the remaining belongings.

There is a 7-day deadline from the date of the padlocking to get your things.

If you contact the landlord within the 7-day deadline, the landlord is only obliged to give you one opportunity to retrieve your things. You should be sure that you are equipped and able to get everything at once, and that you have enough time and help to do so.

After the 7-day period ends, the landlord can keep, sell, give away, or throw away your things.

10 Days to Appeal

If the tenant loses the case, the tenant will have 10 days to appeal the verdict. If the tenant decides to do this, they must give the landlord notice that they are appealing. If the tenant appeals, then the case will have to be heard again in District Court.

Writ of Possession

If the tenant does not appeal the magistrate judge's decision, or if the tenant loses the appeal, then the tenant has to vacate at the end of 10 days. If the tenant does not vacate, then the landlord can ask the Clerk of the Court to enforce the judgment by issuing a "Writ of Possession." Within 3 days the Sheriff will notify the tenant of the Writ of Possession. Within 7 days the Sheriff will padlock the property. The tenant will then have 10 days to remove all personal property, or else the landlord may dispose of it.

A landlord has to follow the North Carolina eviction process if a tenant is not paying the rent or has violated a material provision in the lease that makes eviction a necessity.

Self-Eviction is Unlawful

All North Carolina landlords must obtain a court order to expel a tenant who refuses to leave after notice or demand is given. A landlord who ignores the judicial process may be liable to the tenant for damages.

Self-eviction refers to illegal measures to force a tenant from a leased property. This includes threatening the tenant, arranging for another tenant to move in before the expiration of the lease, denying the tenant access to the property, removing the tenant's personal belongings or any other action to forcibly remove the tenant without a court order.

North Carolina 10-Day Notice

The North Carolina eviction notice for nonpayment of rent is 10-days. The notice should advise the tenant that the tenancy will be maintained if the entire rent owed is paid within the 10-day period or a legal action will be initiated to evict the tenant.

If the lease provides for automatic forfeiture of the premises upon nonpayment of rent after a certain time, tenant will have to tender the rent by that time named in the lease in order to maintain tenancy.

Lease Violation Evictions

The North Carolina eviction process does not specify a minimum period for the landlord to give a tenant notice to vacate the property if a material violation of the lease has occurred. In many cases, the written rental agreement will provide a time. Material violations can include having unauthorized pets or persons living on the premises or where a condition that violates the health or safety of others exists.

A landlord still has to serve a demand on the tenant or notice that he or she must vacate the unit by a certain date and that the tenancy has terminated because of the major breach. The law does not require a landlord to offer the tenant an opportunity to cure the breach within a certain time, but if the violation can be remedied by payment of an increased security deposit, removal of the pet or individuals or of an offending condition, the landlord will usually provide for it in the demand.

For cases where the tenant has been involved in drug trafficking or criminal activity on the premises, which adversely affects the health or safety of other tenants, there is an expedited process to remove the tenant. A court date under these circumstances must be set for trial within the first term of court falling 30-days after service of the complaint.

In month-to-month tenancies, the North Carolina eviction notice may only be 7-days and can be oral.

Summary Ejectment

Should the tenant not pay the rent or fails to remedy a violation of the lease and refuses to vacate within the time provided in the North Carolina Eviction Notice, the landlord must file a Summons and Complaint in Summary Ejectment at the Magistrate's Court. The documents are served by the Sheriff's office either personally or by posting. The Summons contains the date, time and location of the eviction hearing. The tenant has no more than 7-days after the summons is issued to file an Answer.

The hearing is before a judge who considers the evidence of the landlord in support of his or her reason for evicting the tenant. If the tenant does not appear, the court can rely on the pleadings alone in issuing a judgment of possession to the landlord.

A tenant in the North Carolina eviction process may assert any of the following defenses:

The breach of a lease provision is not substantial enough to warrant an eviction.

The allegations are false.

There was improper service.

The notice was improper.

The landlord waived eviction by accepting rent.

If for criminal activity, the tenant had no knowledge of the activity or that the cotenant had violated any criminal or drug trafficking laws, or the tenant made reasonable attempts to prevent the activity.

The eviction is in retaliation for the tenant having filed a complaint regarding the condition of the property.

The eviction is based on the tenant's religion, race, sex, national origin, creed, age, marital or family status, or disability.

THE BASICS

Getting served with court papers: summons and complaint.

Service in person by sheriff's deputy: if you were served the court papers in person (from the deputy's hand to yours), the landlord ( LL) can get a judgment for back rent owed as well as possession of the residence.

Service by mail/papers tacked on your door: if you are not served in person and you do not appear at the hearing, the landlord will be granted possession of the residence but NOT a money judgment (you will still owe the money but, without a judgment, LL can't collect on the judgment by having sheriff seize your property to sell it to satisfy the judgment)

AFTER THE HEARING

IF YOU WON: Congratulations!

LL can file appeal within 10 days

You must still pay rent during the appeal period (directly to LL) unless magistrate says otherwise.

IF YOU LOST: MOVE OUT OR FILE AN APPEAL

Deadline for appealing the decision is ten (10) days after the hearing, including weekends and holidays.

However, if the 10th day falls on a weekend or holiday, deadline is on the next business day.

Appeal is to district court, in front of a judge, to hear the entire case again.

If you appeal the decision, you will be able to stay in your home until your next hearing date as long as you continue to pay rent into the court on time each month.

HOW TO FILE THE APPEAL

Fill out 3 forms:

1. notice of appeal to district court

2. rent bond form: promise to pay rent at courthouse during appeal period

3. petition to appeal as indigent: to avoid $80 appeal costs

File appeal with the Clerk of Superior Court at your county courthouse, open 8:00 am-5:00 pm

Hand-deliver or mail copy of Notice of Appeal to LL on the same day you file appeal

You will not have to pay the $80 appeal costs if you fill out "Petition to Sue as Indigent" form and show the clerk your food stamp or SSI or TANF card, OR if you fill out an "Affidavit of Indigency" form.

Pay rent bond: NOT any amount past due, just rent AS IT COMES DUE.

1st rent bond payment will be pro-rated amount, starting the day after the hearing through the end of the month; 1st payment due when you file the appeal

Pay rent bond to cashier at the courthouse.

Rent bond due on the 5th working day of each month. In your case, this amount is

Do NOT pay rent bond to LL! Pay ONLY at courthouse.

NO excuse for missing rent bond deadline, so DON'T wait until last day to pay, to avoid being padlocked out if your car breaks down, or your ride doesn't show up, or your mother is in the hospital, etc.

IF YOU CAN'T FILE APPEAL AS AN INDIGENT

You'll have to pay the appeal costs at courthouse to file appeal.

You'll also have to pay any back rent due at courthouse the time of the appeal, to stay in the home during the appeal period.

You'll also have to pay ongoing rent bond at the courthouse as it accrues

IF YOU DON'T FILE AN APPEAL (or if you miss a rent bond payment)

You may be padlocked out within about a week of the appeal/payment deadline.

The sheriff will send you a notice in the mail stating the exact date and time of the padlocking.

You should remove all of your belongings from your residence before the padlock date.

If you still have belongings in the residence after the padlocking, you should contact your landlord immediately to make an appointment to get the remaining belongings.

There is a 7-day deadline from the date of the padlocking to get your things.

If you contact LL within the 7-day deadline, s/he is only obliged to give you one opportunity to retrieve your things; you should be sure that you are equipped and able to get everything at once, and that you have enough time and help to do so.

After 7-day period ends, LL can keep, sell, give away, or throw away your things.

CASE ON APPEAL

Usually within two months of filing the appeal, you will receive a calendar in the mail with the date of your district court (appeal) hearing.

If you win, congratulations! Case is over; LL can still appeal to the Court of Appeals but most do not.

If you lose, you have 30 days to move before the landlord can order the sheriff to padlock the residence (unless the judge orders that it happen sooner).

Same padlocking time frame and process applies: you can get padlocked out within a week, and then will have seven days to get any remaining belongings out of the house.

MOVING OUT

Return the keys ASAP! You are responsible for rent until you turn keys in.

You should leave the premises clean and empty.

If your landlord has to clean up (beyond ordinary wear and tear) or remove any items or trash after you leave, he can charge you for his expenses.

LL's expenses can be deducted from your security deposit, and he can charge you beyond that amount as well.

Before turning in the keys, take photos of each room to document its condition, in case you later need to dispute the landlord's move-out charges. Have a friend assist you who can testify, if necessary, about the condition of the premises.

Give LL forwarding address to send your security deposit or an accounting of how it was spent. LL has 30 days to do so after you move out. If you dispute charges your LL has made to your security deposit, contact an attorney.

IF YOUR HOME HAS UNFIT CONDITIONS

Unfit conditions are not an excuse for nonpayment of rent! Take these steps instead:

Put requests for repairs to LL in writing, date them, save copies for yourself

Take photos/videotape footage to document the unfit conditions in your home

If you have a Section 8 voucher, complain to your caseworker

Call City or County Inspectors or Public Health Dept. to ask for an inspection of your home

Contact an attorney for assistance

6. Continue to pay your rent!

Writ of Execution

If the landlord prevails, the court will award possession to the landlord. The tenant has 10-days to appeal the ruling or to vacate the property. If the tenant appeals, a rent bond must be posted. He or she is also liable for any additional rent incurred while remaining on the property whether an appeal is filed or not.

After 10-days, the landlord can obtain a Writ of Execution from the court, which is given to the Sheriff's office to serve not more than 7 days after receipt. The Writ contains the date and approximate time the tenant must vacate. It must be served on the tenant at least 2 days before the Sheriff will appear to remove the tenant's personal belongings. If the tenant is served by mail, it must be at least 5-days before the date of execution.

If the unit is padlocked by the sheriff on the execution date, the tenant is responsible for the cost. The landlord must place the items in storage for 10-days and must pay the costs when requested by the Sheriff on the day of execution. If the landlord refuses, the property will not be removed by the Sheriff and the writ returned to the court clerk who issued it.

Should the tenant not make a request for the property and pay all costs of summary ejectment, execution and storage, the property may be disposed of by the landlord.

Evictions. Nobody likes to talk about them and any landlord has a horror story to tell. Unfortunately, evictions are a necessary practice in property management but they shouldn't become an emotional event for the landlord. I'll discuss the right way to handle evictions towards the end of this post, but first I'll go over the eviction process and timeline in North Carolina (and specifically the Charlotte area).

Assume rent is due on the 1st of the month, is late on the 6th and the tenant hasn't paid.

Landlord sends a demand for payment letter to the tenant, giving the tenant notice that they have 10 days to pay or eviction will be filed. This step can be skipped if your lease includes a clause that waives the 10 day notice period. Many leases do NOT waive notice (Alarca's lease waives notice).

File eviction at the county courthouse once the proper period has elapsed. Filing fees vary by county and also depend upon the number of tenants on the lease. In Mecklenburg County, NC the filing fees are roughly $160 for two tenants.

Once filed a court date is set. In Mecklenburg County this is typically 3-4 weeks from the filing date.

Attend court and receive a judgment if you win.

The tenants have 10 days to file an appeal.

If an appeal is NOT filed and the home is still occupied, you must file a Writ of Possession. This is the document that grants possession of the home and tells the Sheriff that you want to change the locks on the home.

Once the locks are changed the tenants have another 10 days to retrieve their items (this will become 5 days on October 1, 2012). The tenants' items must not be disposed of during this 10 day period.

If an appeal is filed after step 5 above, a new court date will be set. This is typically 30 days or so after the appeal is filed. The tenants are supposed to post rent with the court during this time period.

The appeal is held in District Court and an attorney must be hired if the owner of the home is a corporation or LLC.

Landlords and Property Owners -

Need help with an Eviction, Let us help you with Notices to Tenants, Document Preparation and Filing your Eviction.

LANDLORDS EVICTION HELP

What NC Courts have to say!

What is eviction?

Eviction is a type of court case. In North Carolina, an eviction case is called "summary ejectment." Landlords can file to legally remove a tenant rented property if the tenant has failed to pay rent, violated the lease agreement, or if other conditions apply.

Can a landlord evict a tenant without going to court?

Landlords cannot force tenants out of their homes without going to court, for instance, by changing the locks, turning off utilities or removing the doors. Landlords may send tenants "eviction notices" warning tenants that they plan to file for eviction unless the tenant moves out first. In general, landlords are not required to send an eviction notice before filing an eviction. An eviction notice allows the tenant to choose to voluntarily move out to avoid the court process.

What is a landlord required to do to get an eviction?

The landlord must file a "Complaint in Summary Ejectment" with the clerk of court. In court, the landlord must prove that grounds for eviction exist. Landlords can evict tenants under the following circumstances:

The tenant did not pay rent, the landlord made a demand for rent and waited 10 days, but the tenant still has not paid the rent.

The lease has ended, but the tenant has not moved out.

The tenant has violated a condition of the lease allowing for eviction. This may include failure to pay rent if the lease includes appropriate language.

Criminal activity has occurred for which the tenant can be held responsible.

What if I want to get someone out of my home, but we never signed a lease?

Leases can be written or oral. However, a person allowed to live in someone else's home without any agreement to pay rent or become a tenant is a guest. The eviction process is intended for tenants, and also gives tenants certain rights, including written notice of the claims against them and the opportunity for a hearing in which they can present a defense. Guests do not have these rights, and guests who refuse to leave the property may be removed either by the police or through a trespass warrant issued by a magistrate.

Can I be evicted if I was unable to pay the rent for a good reason?

Yes. Failing to pay rent is grounds for eviction even if it is not your fault that you were unable to pay.

Will evictions show up on my record?

Evictions are not criminal and will not show up in a criminal record. However, evictions are public record, which may appear in credit reports or affect the tenant's ability to qualify for another lease.

What if I live in public housing or have a Section 8 voucher?

Tenants who live in public housing or receive subsidized housing vouchers have more rights than tenants renting from private landlords without assistance. You should seek legal assistance if you are in public housing or have a housing voucher and are being evicted, because an eviction could affect your right to receive further housing assistance.

What if I own a mobile home and rent a lot?

When a landlord rents a lot to a mobile home owner and wants to end the lease, the landlord must give 60 days' notice. However, if the tenant fails to pay rent or breaches the lease, the landlord can evict the tenant on the same timeline as any other tenant. Tenants who own their mobile homes are responsible for the cost of moving the mobile home. Local zoning regulations may also affect owners' ability to move an old mobile home.

The Eviction Process

What notice does a tenant get of the eviction?

The landlord must have the tenant "served" with the court paperwork, either by certified mail, return receipt requested, or by paying the sheriff to deliver the paperwork. If the landlord arranges to have the sheriff serve the tenant, the sheriff must first attempt to contact the tenant to serve him or her personally. If this fails, the sheriff can serve the tenant by posting the paperwork on the door of the property. This is proper notice even if the tenant does not actually see the paperwork. However, if the tenant is served only by posting and does not appear in court, the court cannot order the tenant to pay any money, including past due rent, to the landlord.

Who decides eviction cases?

Eviction cases are typically handled in small claims court, where they are decided by a magistrate. If either the landlord or the tenant appeals, the case will go to District Court, where there will be a new hearing before a judge.

What happens in small claims court?

Small claims court can be held in a courtroom or in the magistrate's office. The magistrate will typically have many cases scheduled for the same date and time. The magistrate will first call the names of everyone with a case scheduled to find out who is in court, and will then hear the cases one at a time.

Because the landlord filed the case, the magistrate will hear from the landlord first. The tenant has the right to ask questions of the landlord and any witnesses once they have finished testifying. The magistrate will then allow the tenant to testify, call witnesses and present any other evidence, such as pictures or documents. Both landlords and tenants may hire attorneys to represent them in small claims court if they wish, but they are not required to do so.

After hearing the case, the magistrate will decide. The magistrate will usually announce the decision in court but will sign a written order later. You may receive a copy in the mail, or you can get a copy of the written order from the clerk of court.

What if a party doesn't go to small claims court?

Because eviction cases are civil, not criminal, no one is arrested for failure to appear in court. If a landlord fails to appear in small claims court, the case will be dismissed. If a tenant fails to appear, the magistrate will hear the case based only on the landlord's version of the facts. The magistrate can order an eviction in the tenant's absence and can order the tenant to pay money in the tenant's absence only if the tenant was not served by posting the notice on the property.

Can I get a continuance in small claims court?

Magistrates may grant continuances for good cause but may not give a continuance of more than five days unless the parties agree. You should be prepared to present your case on the first court date.

How much time do I have to move if the magistrate evicts me?

Both parties have 10 days after the magistrate's decision to appeal the case to District Court. The landlord cannot remove the tenant from the home until the appeal period has ended, whether or not the tenant appeals the case. Once the 10 days have passed, the landlord can return to court and ask the clerk for an order called a "Writ of Possession," which allows the sheriffs to padlock the home. The sheriff's office must then remove the tenant within 5 days. Local sheriffs' departments will often notify tenants in advance of the date they intend to padlock the home.

When the sheriffs come, will they throw my things out on the street?

No. However, the sheriffs will remove the tenants from the home and the landlord will padlock the doors or change the locks. This means that there could be a delay of hours or days before you are able to go back inside to get anything that you have left in the home.

How much time do I have to get my things out after the eviction?

Depending on the value of your belongings left in the home, you have 5 to 7 days after the home is padlocked to arrange with the landlord a time to remove your belongings. Landlords are only required to allow tenants one visit to the home to collect all of the property. If you leave property worth a total of $500 or less in the home, you have 5 days to retrieve it; if it is worth more than $500, you have 7 days. If you have not yet arranged to move your things in this time period, the landlord can dispose of them.

Appeals

What happens when an eviction case is appealed?

The case is scheduled for a new trial before a District Court judge in the same county. Both the landlord and tenant will have a new opportunity to testify and present evidence and witnesses, and the judge will make a new decision about whether the landlord has proven grounds to evict the tenant.

How can I appeal my eviction case?

Either a landlord or a tenant can appeal an eviction decision from small claims court to District Court by filing a Notice of Appeal with the clerk of court. Many tenants also file a Petition to Appeal as an Indigent and a Bond to Stay Execution (see the next two questions).

Do I have to pay to appeal?

In general, in order to appeal, a tenant must pay to the clerk of court the court costs and any past due rent ordered by the magistrate. Tenants who are unable to pay can ask to be found "indigent," which means they are not required to pay the court costs or past due rent while the case is on appeal. However, all tenants, including indigent tenants, must pay rent as it comes due to the clerk of court during the appeal (see next question). Anyone receiving public assistance through the Supplemental Nutrition Assistance Program (SNAP or food stamps), Temporary Assistance to Needy Families (TANF or welfare) or Supplemental Security Income (SSI) is considered unable to pay. You can find the indigency form here. This should be filed with the Notice of Appeal.

Can I stay in the home while my case is on appeal?

Yes, but all tenants, including indigent tenants, must pay their rent to the clerk of court during the appeal if they wish to stay in the property. This is called "posting a bond." In order to prevent eviction during the appeal and to pay rent to the clerk, the tenant must file a "Bond to Stay Execution" with the Notice of Appeal. Tenants who wish to stay in the property during the appeal must pay the prorated rent from the date of the magistrate's decision and continue to pay the rent to the clerk as it comes due. A tenant who fails to pay rent during this time can be evicted before a judge hears the appeal. Tenants who are not indigent must also pay to the clerk any undisputed amount owed to the landlord.

Security Deposits

What are the rules for return of security deposits?

A landlord may keep a tenant's security deposit to cover unpaid bills such as rent, damage to the property, court costs charged to the tenant in an eviction case, costs due to the tenant's breach of the lease, or the cost of removing and storing the tenant's property after eviction. In order to withhold part or all of a security deposit, the landlord is required to send the tenant an initial itemized bill within 30 days and a final bill within 60 days, explaining what the deposit is being used for. The landlord can only keep the amount needed to cover actual costs. If the tenant's forwarding address is unknown, the landlord is not required to provide an accounting but must hold any remaining money for the tenant for at least six months.

Legal Representation

Can I represent myself in my eviction case?

Yes. Many people, including both landlords and tenants, represent themselves in small claims court. Self-representation is less common if the case is appealed to District Court, since this is the last opportunity for a trial in the case. If you choose to represent yourself in either court, you will be held to the same rules of evidence and procedure as a licensed attorney. Court officials, such as judges and clerks of court, cannot give you legal advice about your rights and obligations, possible claims or defenses, or the likely outcome of your case.

So, that's the process in a nutshell. There are a lot of little things that can happen during this timeframe. Most landlords lose their cases due to insufficient documentation, improper filing, insufficient notice, etc. Also, some landlords feel that if the tenant isn't paying rent, the landlord isn't going to make repairs. This is a big mistake and another reason that landlords may not only lose their case but may end up owing the tenant money for damages!

So, what's the right way to handle all of this? First and foremost, treat the tenants with respect and understanding. Your tenant is likely already going through a tough period and there is no reason to make things worse. It is very helpful to have a written policy that is consistently applied across all situations and with all tenants. This should be communicated to the tenant at lease signing and reinforced every time rent is late. For example, Alarca files evictions on the 11th of every month on every tenant who hasn't paid.

Ensure that the property is maintained in accordance with all local code requirements and that the landlord is following all of the rules regarding notice, acceptance of rent, etc. Your best bet is to hire a competent attorney and property manager to handle the management of the home during this crucial period. You can attend court anytime and see time after time where misinformed landlords lose their case due to technical mistakes, they've made in the filing process. Why put yourself through this when Alarca can handle this for you? In most evictions we file, we are able to work with the tenants to get them back on track.