CHAPTER 42.
Landlord and Tenant.
ARTICLE 1.
General Provisions.
Lessor and lessee not partners:
No lessor of property, merely by reason that he is to receive as
rent or compensation for its use a share of the proceeds or net
profits of the business in which it is employed, or any other
uncertain consideration, shall be held a partner of the lessee. §42-1.
Attornment unnecessary on conveyance of reversions, etc:
Every conveyance of any rent, reversion, or remainder in lands,
tenements or hereditaments, otherwise sufficient, shall be deemed
complete without attornment by the holders of particular estates in
said lands: Provided, no holder of a particular estate shall be
prejudiced by any act done by him as holding under his grantor,
without notice of such conveyance. §42-2.
Term forfeited for nonpayment of rent:
In all verbal or written leases of real property of any kind
which is fixed a definite time for the payment of the rent reserved
therein, there shall be implied a forfeiture of the term upon
failure to pay the rent within 10 days after a demand is made by the
lessor or his agent on said lessee for all past-due rent, and the
lessor may forthwith enter and dispossess the tenant without having
declared such forfeiture or reserved the right of reentry in the
lease. §42-3.
Recovery for use and occupation:
When any person occupies land of another by the permission of
such other, without any express agreement for rent, or upon a parol
lease which is void, the landlord may recover a reasonable
compensation for such occupation, and if by such parol lease a
certain rent was reserved, such reservation may be received as
evidence of the value of the occupation. §42-4.
Rent apportioned, where lease terminated by death:
If a lease of land, in which rent is reserved, payable at the
end of the year or other certain period of time, is determined by
the death of any person during one of the periods in which the rent
was growing due, the lessor or his personal representative may
recover a part of the rent which becomes due after the death,
proportionate to the part of the period elapsed before the death,
subject to all just allowances; and if any security was given for
such rent it shall be apportioned in like manner. §42-5.
Rents, annuities, etc., apportioned, where right to
payment terminated by death:
In all cases where rents, rent charges, annuities, pensions,
dividends, or any other payments of any description, are made
payable at fixed periods to successive owners under any instrument,
or by any will, and where the right of any owner to receive payment
is terminable by a death or other uncertain event, and where such
right so terminates during a period in which a payment is growing
due, the payment becoming due next after such terminating event
shall be apportioned among the successive owners according to the
parts of such periods elapsing before and after the terminating
event. §42-6.
In lieu of emblements, farm lessee holds out year, with
rents apportioned:
When any lease for years of any land let for farming on which a
rent is reserved determines during a current year of the tenancy, by
the happening of any uncertain event determining the estate of the
lessor, or by a sale of said land under any mortgage or deed of
trust, the tenant in lieu of emblements shall continue his
occupation to the end of such current year, and shall then give up
such possession to the succeeding owner of the land, and shall pay
to such succeeding owner a part of the rent accrued since the last
payment became due, proportionate to the part of the period of
payment elapsing after the termination of the estate of the lessor
to the giving up such possession; and the tenant in such case shall
be entitled to a reasonable compensation for the tillage and seed of
any crop not gathered at the expiration of such current year from
the person succeeding to the possession. §42-7.
Grantees of reversion and assigns of lease have reciprocal
rights under covenants:
The grantee in every conveyance of reversion in lands, tenements
or hereditaments has the like advantages and remedies by action or
entry against the holders of particular estates in such real
property, and their assigns, for nonpayment of rent, and for the
nonperformance of other conditions and agreements contained in the
instruments by the tenants of such particular estates, as the
grantor or lessor or his heirs might have; and the holders of such
particular estates, and their assigns, have the like advantages and
remedies against the grantee of the reversion, or any part thereof,
for any conditions and agreements contained in such instruments, as
they might have had against the grantor or his lessors or his heirs.
§42-8.
Agreement to rebuild, how construed in case of fire:
An agreement in a lease to repair a demised house shall not be
construed to bind the contracting party to rebuild or repair in case
the house shall be destroyed or damaged to more than one half of its
value, by accidental fire not occurring from the want of ordinary
diligence on his part. §42-8.
Tenant not liable for accidental damage:
A tenant for life, or years, or for a less term, shall not be
liable for damage occurring on the demised premises accidentally,
and notwithstanding reasonable diligence on his part, unless he so
contract. §42-10.
Willful destruction by tenant misdemeanor:
If any tenant shall, during his term or after its expiration,
willfully and unlawfully demolish, destroy, deface, injure or damage
any tenement house, uninhabited house or other outhouse, belonging
to his landlord or upon his premises by removing parts thereof or by
burning, or in any other manner, or shall unlawfully and willfully
burn, destroy, pull down, injure or remove any fence, wall or other
inclosure or any part thereof, built or standing upon the premises
of such landlord, or shall willfully and unlawfully cut down or
destroy any timber, fruit, shade or ornamental tree belonging to
said landlord, he shall be guilty of a Class 1 misdemeanor. §
42-11.
Lessee may surrender, where building destroyed or damaged:
If a demised house, or other building, is destroyed during the
term, or so much damaged that it cannot be made reasonably fit for
the purpose for which it was hired, except at an expense exceeding
one year's rent of the premises, and the damage or destruction occur
without negligence on the part of the lessee or his agents or
servants, and there is no agreement in the lease respecting repairs,
or providing for such a case, and the use of the house damaged or
destroyed was the main inducement to the hiring, the lessee may
surrender his estate in the demised premises by a writing to that
effect delivered or tendered to the landlord within 10 days from the
damage or destruction, and by paying or tendering at the same time
all rent in arrear, and a part of the rent growing due at the time
of the damage or destruction, proportionate to the time between the
last period of payment and the occurrence of the damage or
destruction, and the lessee shall be thenceforth discharged from all
rent accruing afterwards; but not from any other agreement in the
lease. This section shall not apply if a contrary intention appear
from the lease. §42-12.
Wrongful surrender to other than landlord misdemeanor:
Any tenant or lessee of lands who shall willfully, wrongfully
and with intent to defraud the landlord or lessor, give up the
possession of the rented or leased premises to any person other than
his landlord or lessor, shall be guilty of a Class 1 misdemeanor. §
42-13.
Notice to quit in certain tenancies:
A tenancy from year to year may be terminated by a notice to
quit given one month or more before the end of the current year of
the tenancy; a tenancy from month to month by a like notice of seven
days; a tenancy from week to week, of two days. Provided,
however, where the tenancy involves only the rental of a space for a
manufactured home as defined in G.S. 143-143.9(6), a notice to quit
must be given at least 30 days before the end of the current rental
period, regardless of the term of the tenancy. § 42-14.
Rent control:
No county or city as defined by G.S. 160A-1 may enact, maintain,
or enforce any ordinance or resolution which regulates the
amount of rent to be charged for privately owned, single-family or
multiple unit residential or commercial rental property. This
section shall not be construed as prohibiting any county or city, or
any authority created by a county or city for that purpose, from:
(1) Regulating in any way property
belonging to that city, county, or authority;
(2) Entering into agreements with
private persons which regulate the amount of rent charged for
subsidized rental properties; or
(3) Enacting ordinances or resolutions
restricting rent for properties assisted with Community Development
Block Grant Funds. § 42-14.1.
Death, illness, or conviction of certain crimes not a
material fact:
In offering real property for rent or lease it shall not be
deemed a material fact that the real property was occupied
previously by a person who died or had a serious illness while
occupying the property or that a person convicted of any crime for
which registration is required by Article 27A of Chapter 14 of the
General Statutes occupies, occupied, or resides near the property;
provided, however, that no landlord or lessor may knowingly make a
false statement regarding any such fact. § 42-14.2. ARTICLE
2.
Agricultural Tenancies.
Landlord's lien on crops for rents, advances, etc.;
enforcement:
When lands are rented or leased by agreement, written or oral,
for agricultural purposes, or are cultivated by a cropper, unless
otherwise agreed between the parties to the lease or agreement, any
and all crops raised on said lands shall be deemed and held to be
vested in possession of the lessor or his assigns at all times,
until the rents for said lands are paid and until all the
stipulations contained in the lease or agreement are performed, or
damages in lieu thereof paid to the lessor or his assigns, and until
said party or his assigns is paid for all advancements made and
expenses incurred in making and saving said crops.
This lien shall be preferred to all other liens, and the
lessor or his assigns is entitled, against the lessee or cropper, or
the assigns of either, who removes the crop or any part thereof from
the lands without the consent of the lessor or his assigns, or
against any other person who may get possession of said crop or any
part thereof, to the remedies given in an action upon a claim for
the delivery of personal property.
Provided, that when advances have been made by the federal
government or any of its agencies, to any tenant or tenants on lands
under the control of any guardian, executor and/or administrator for
the purpose of enabling said tenant or tenants to plant, cultivate
and harvest crops grown on said land, the said guardian, executor,
and/or administrator may waive the above lien in favor of the
federal government, or any of its agencies, making said advances. §
42-15.
Landlord's lien on crop insurance for rents, advances,
etc.; enforcement:
Where lands are rented or leased by agreement, written or oral,
for agricultural purposes, or are cultivated by a cropper, unless
otherwise agreed between the parties to the lease or agreement, the
landlord or his assigns shall have a lien on all the insurance
procured by the tenant or cropper on the crops raised on the lands
leased or rented to the extent of any rents due or advances made to
the tenant or cropper.
The lien provided herein shall be preferred to all other
liens on said insurance, and the landlord or his assigns shall be
entitled to all the reme dies at law for the enforcement of the
lien. §42-15.1.
Rights of tenants:
When the lessor or his assigns gets the actual possession of the
crop or any part thereof otherwise than by the mode prescribed in
G.S. 42-15, and refuses or neglects, upon a notice, written or oral,
of five days, given by the lessee or cropper or the assigns of
either, to make a fair division of said crop, or to pay over to such
lessee or cropper or the assigns of either, such part thereof as he
may be entitled to under the lease or agreement, then and in that
case the lessee or cropper or the assigns of either is entitled to
the remedies against the lessor or his assigns given in an action
upon a claim for the delivery of personal property to recover such
part of the crop as he, in law and according to the lease or
agreement, may be entitled to.
The amount or quantity of such crop claimed by said lessee or
cropper or the assigns of either, together with a statement of the
grounds upon which it is claimed, shall be fully set forth in an
affidavit at the beginnin g of the action. §42-16.
Action to settle dispute between parties:
When any controversy arises between the parties, and neither
party avails himself of the provisions of this Chapter, it is
competent for either party to proceed at once to have the matter
determined in the appropriate trial division of the General Court of
Justice. §42-17.
Tenant's undertaking on continuance or appeal:
In case there is a continuance or an appeal from the agistrate's
decision to the district court, the lessee or cropper, or the
assigns of either, shall be allowed to retain possession of said
property upon his giving an undertaking to the lessor or his
assigns, or the adverse party, in a sum double the amount of the
claim, if such claim does not amount to more than the value of such
property, otherwise to double the value of such property, with good
and sufficient surety, to be approved by the magistrate or the clerk
of the superior court, conditioned for the faithful payment to the
adverse party of such damages as he shall recover in said action. §42-18.
Crops delivered to landlord on his undertaking:
In case the lessee or cropper, or the assigns of either, at the
time of the appeal or continuance mentioned in G.S. 42-18, fails to
give the undertaking therein required, then the sheriff or other
lawful officer shall deliver the property into the actual possession
of the lessor or his assigns, upon the lessor or his assigns giving
to the adverse party an undertaking in double the amount of said
property, to be justified as required in G.S. 42-18, conditioned for
the forthcoming of such property, or the value thereof, in case
judgment is pronounced against him. §42-19.
Crops sold, if neither party gives undertaking:
If neither party gives the undertaking described in G.S. 42- 18
and 42-19, it is the duty of the clerk of the superior court to
issue an order to the sheriff, or other lawful officer, directing
him to take into his possession all of said property, or so much
thereof as may be necessary to satisfy the claimant's demand and
costs, and to sell the same under the rules and regulations
prescribed by law for the sale of personal property under execution,
and to hold the proceeds thereof subject to the decision of the
court upon the issue or issues pending between the parties. §42-20.
Tenant's crop not subject to execution against landlord:
Whenever servants and laborers in agriculture shall by their
contracts, oral or written, be entitled, for wages, to a part of the
crops cultivated by them, such part shall not be subject to sale
under executions against their employers, or the owners of the land
cultivated. §42-21.
Unlawful seizure by landlord or removal by tenant
misdemeanor:
If any landlord shall unlawfully, willfully, knowingly and
without process of law, and unjustly seize the crop of his tenant
when there is nothing due him, he shall be guilty of a Class 1
misdemeanor. If any lessee or cropper, or the assigns of
either, or any other person, shall remove a crop, or any part
thereof, from land without the consent of the lessor or his assigns,
and without giving him or his agent five days' notice of such
intended removal, and before satisfying all the liens held by the
lessor or his assigns, on said crop, he shall be guilty of a Class 1
misdemeanor. § 42-22.
Failure of tenant to account for sales under tobacco
marketing cards:
Any tenant or share cropper having possession of a tobacco
marketing card issued by any agency of the State or federal
government who sells tobacco authorized to be sold thereby and fails
to account to his landlord, to the extent of the net proceeds of
such sale or sales, for all liens, rents, advances, or other claims
held by his landlord against the tobacco or the proceeds of the sale
of such tobacco, shall be guilty of a Class 1 misdemeanor. §
42-22.1.
Terms of agricultural tenancies in certain counties:
All agricultural leases and contracts hereafter made between
landlord and tenant for a period of one year or from year to year,
whether such tenant pay a specified rental or share in the crops
grown, such year shall be from December first to December first, and
such period of time shall constitute a year for agricultural
tenancies in lieu of the law and custom heretofore prevailing,
namely from January first to January first. In all cases of such
tenancies a notice to quit of one month as provided in G.S. 42-14
shall be applicable. If on account of illness or any other good
cause, the tenant is unable to harvest all the crops grown on lands
leased by him for any year prior to the termination of his lease
contract on December first, he shall have a right to return to the
premises vacated by him at any time prior to December thirty-first
of said year, for the purpose only of harvesting and dividing the
remaining crops so ungathered. But he shall have no right to use the
houses or outbuildings or that part of the lands from which the
crops have been harvested prior to the termination of the tenant
year, as defined in this section.
This section shall only apply to the counties of Alamance,
Anson, Ashe, Bladen, Brunswick, Columbus, Craven, Cumberland,
Duplin, Edgecombe, Gaston, Greene, Hoke, Jones, Lenoir, Lincoln,
Montgomery, Onslow, Pender, Person, Pitt, Robeson, Sampson, Wayne
and Yadkin. §42-23.
Turpentine and lightwood leases:
This Chapter shall apply to all leases or contracts to lease
turpentine trees, or use lightwood for purposes of making tar, and
the parties thereto shall be fully subject to the provisions and
penalties of this Chapter. §42-24.
Mining and timberland leases:
If in a lease of land for mining, or of timbered land for the
purpose of manufacturing the timber into goods, rent is reserved,
and if it is agreed in the lease that the minerals, timber or goods,
or any portion thereof, shall not be removed until the payment of
the rent, in such case the lessor shall have the rights and be
entitled to the remedy given by this Chapter. §42-25. ARTICLE
2A.
Ejectment of Residential Tenants.
Manner of ejectment of residential tenants:
It is the public policy of the State of North Carolina, in order
to maintain the public peace, that a residential tenant shall be
evicted, dispossessed or otherwise constructively or actually
removed from his dwelling unit only in accordance with the procedure
prescribed in Article 3 or Article 7 of this Chapter. § 42-25.6.
Distress and distraint not permitted:
It is the public policy of the State of North Carolina that
distress and distraint are prohibited and that landlords of
residential rental property shall have rights concerning the
personal property of their residential tenants only in accordance
with G.S.
Contrary lease provisions:
Any lease or contract provision contrary to this Article shall
be void as against public policy. §42-25.8.
Remedies:
(a) If any lessor, landlord, or agent removes or attempts
to remove a tenant from a dwelling unit in any manner contrary to
this Article, the tenant shall be entitled to recover possession or
to terminate his lease and the lessor, landlord or agent shall be
liable to the tenant for damages caused by the tenant's removal or
attempted removal. Damages in any action brought by a tenant under
this Article shall be limited to actual damages as in an action for
trespass or conversion and shall not include punitive damages,
treble damages or damages for emotional distress.
(b) If any lessor, landlord, or agent seizes possession of
or interferes with a tenant's access to a tenant's or household
member's personal property in any manner not in accordance with G.S.
44A-2(e2), 42-25.9(d), 42-25.9(g), 42-25.9(h), or G.S. 42- 36.2 the
tenant or household member shall be entitled to recover possession
of his personal property or compensation for the value of the
personal property, and, in any action brought by a tenant or
household member under this Article, the landlord shall be liable to
the tenant or household member for actual damages, but not including
punitive damages, treble damages or damages for emotional distress.
(c) The remedies created by this section are supplementary
to all existing common-law and statutory rights and remedies.
(d) If any tenant abandons personal property of five
hundred dollar ($500.00) value or less in the demised
premises, or fails to remove such property at the time of execution
of a writ of possession in an action for summary ejectment, the
landlord may, as an alternative to the procedures provided in G.S.
42-25.9(g), 42-25.9(h), or 42-36.2, deliver the property into the
custody of a nonprofit organization regularly providing free or at a
nominal price clothing and household furnishings to people in need,
upon that organization agreeing to identify and separately store the
property for 30 days and to release the property to the tenant at no
charge within the 30-day period. A landlord electing to use this
procedure shall immediately post at the demised premises a notice
containing the name and address of the property recipient, post the
same notice for 30 days or more at the place where rent is received,
and send the same notice by first-class mail to the tenant at the
tenant's last known address. Provided, however, that the notice
shall not include a description of the property.
(e) For purposes of subsection (d), personal property
shall be deemed abandoned if the landlord finds evidence that
clearly shows the premises has been voluntarily vacated after the
paid rental period has expired and the landlord has no notice of a
disability that caused the vacancy. A presumption of abandonment
shall arise 10 or more days after the landlord has posted
conspicuously a notice of suspected abandonment both inside and
outside the premises and has received no response from the tenant.
(f) Any nonprofit organization agreeing to receive
personal property under subsection (d) shall not be liable to the
owner for a disposition of such property provided that the property
has been separately identified and stored for release to the owner
for a period of 30 days.
(g) Ten days after being placed in lawful possession by
execution of a writ of possession, a landlord may throw away,
dispose of, or sell all items of personal property remaining on the
premises, except that in the case of the lease of a space for a
manufactured home as defined in G.S. 143-143.9(6), G.S. 44A-2(e2)
shall apply to the disposition of a manufactured home with a
current value in excess of five hundred dollars ($500.00) and its
contents by a landlord after being placed in lawful possession by
execution of a writ of possession. During the 10-day period after
being placed in lawful possession by execution of a writ of
possession, a landlord may move for storage purposes, but shall not
throw away, dispose of, or sell any items of personal property
remaining on the premises unless otherwise provided for in this
Chapter. Upon the tenant's request prior to the expiration of the
10-day period, the landlord shall release possession of the property
to the tenant during regular business hours or at a time agreed
upon. If the landlord elects to sell the property at public or
private sale, the landlord shall give written notice to the tenant
by first-class mail to the tenant's last known address at least
seven days prior to the day of the sale. The seven-day notice of
sale may run concurrently with the 10-day period which allows the
tenant to request possession of the property. The written notice
shall state the date, time, and place of the sale, and that any
surplus of proceeds from the sale, after payment of unpaid rents,
damages, storage fees, and sale costs, shall be disbursed to the
tenant, upon request, within 10 days after the sale, and will
thereafter be delivered to the government of the county in which the
rental property is located. Upon the tenant's request prior to the
day of sale, the landlord shall release possession of the property
to the tenant during regular business hours or at a time agreed
upon. The landlord may apply the proceeds of the sale to the unpaid
rents, damages, storage fees, and sale costs. Any surplus from the
sale shall be disbursed to the tenant, upon request, within 10 days
of the sale and shall thereafter be delivered to the government of
the county in which the rental property is located.
(h) If the total value of all property remaining on the
premises at the time of execution of a writ of possession in an
action for summary ejectment is less than one hundred dollars
($100.00), then the property shall be deemed abandoned five days
after the time of execution, and the landlord may throw away or
dispose of the property. Upon the tenant's request prior to the
expiration of the five-day period, the landlord shall release
possession of the property to the tenant during regular business
hours or at a time agreed upon. § 42-25.9.
ARTICLE 3.
Summary Ejectment.
Tenant holding over may be dispossessed in certain cases:
Any tenant or lessee of any house or land, and the assigns under
the tenant or legal representatives of such tenant or lessee, who
holds over and continues in the possession of the demised premises,
or any part thereof, without the permission of the landlord, and
after demand made for its surrender, may be removed from such
premises in the manner hereinafter prescribed in any of the
following cases:
(1) When a tenant in possession of real
estate holds over after his term has expired.
(2) When the tenant or lessee, or other
person under him, has done or omitted any act by which, according to
the stipulations of the lease, his estate has ceased.
(3) When any tenant or lessee of lands
or tenements, who is in arrear for rent or has agreed to cultivate
the demised premises and to pay a part of the crop to be made
thereon as rent, or who has given to the lessor a lien on such crop
as a security for the rent, deserts the demised premises, and leaves
them unoccupied and uncultivated. § 42-26.
Local: Refusal to perform contract ground for
dispossession:
When any tenant or cropper who enters into a contract for the
rental of land for the current or ensuing year willfully neglects or
refuses to perform the terms of his contract without just cause, he
shall forfeit his right of possession to the premises. This section
applies only to the following counties: Alamance, Alexander,
Alleghany, Anson, Ashe, Beaufort, Bertie, Bladen, Brunswick, Burke,
Cabarrus, Camden, Carteret, Caswell, Chatham, Chowan, Cleveland,
Columbus, Craven, Cumberland, Currituck, Davidson, Duplin,
Edgecombe, Forsyth, Franklin, Gaston, Gates, Greene, Guilford,
Halifax, Harnett, Hertford, Hoke, Hyde, Jackson, Johnston, Jones,
Lee, Lenoir, Martin, Mecklenburg, Montgomery, Moore, Nash,
Northampton, Onslow, Pasquotank, Pender, Perquimans, Pitt, Polk,
Randolph, Robeson, Rockingham, Rowan, Rutherford, Sampson,
Stokes, Surry, Swain, Tyrrell, Union, Wake, Warren, Washington,
Wayne, Wilson, Yadkin. §42-27.
Summons issued by clerk:
When the lessor or his assignee files a complaint pursuant
to G.S. 42-26 or 42-27, and asks to be put in possession of the
leased premises, the clerk of superior court shall issue a summons
requiring the defendant to appear at a certain time and place not to
exceed seven days from the issuance of the summons, excluding
weekends and legal holidays, to answer the complaint.
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. §
42-28.
Service of summons:
The officer receiving the summons shall mail a copy of the
summons and complaint to the defendant no later than the end of
the next business day or as soon as practicable at the defendant's
last known address in a stamped addressed envelope provided by the
plaintiff to the action. The officer may, within five days of the
issuance of the summons, attempt to telephone the defendant
requesting that the defendant either personally visit the officer to
accept service, or schedule an appointment for the defendant to
receive delivery of service from the officer. If the officer does
not attempt to telephone the defendant or the attempt is
unsuccessful or does not result in service to the defendant, the
officer shall make at least one visit to the place of abode of the
defendant within five days of the issuance of the summons at a time
reasonably calculated to find the defendant at the place of abode to
attempt personal delivery of service. He then shall deliver a copy
of the summons together with a copy of the complaint to the
defendant, or leave copies thereof at the defendant's dwelling house
or usual place of abode with some person of suitable age and
discretion then residing therein. If such service cannot be made the
officer shall affix copies to some conspicuous part of the premises
claimed and make due return showing compliance with this section.
§ 42-29.
Judgment by confession or where plaintiff has proved case:
The summons shall be returned according to its tenor, and if on
its return it appears to have been duly served, and if the plaintiff
proves his case by a preponderance of the evidence, or the defendant
admits the allegations of the complaint, the magistrate shall give
judgment that the defendant be removed from, and the plaintiff be
put in possession of, the demised premises; and if any rent or
damages for the occupation of the premises after the cessation of
the estate of the lessee, not exceeding the jurisdictional amount
established by G.S. 7A-210(1), be claimed in the oath of the
plaintiff as due and unpaid, the magistrate shall inquire thereof,
and give judgment as he may find the fact to be. § 42-30.
Trial by magistrate:
If the defendant by his answer denies any material allegation in
the oath of the plaintiff, the magistrate shall hear the evidence
and give judgment as he shall find the facts to
be. §42-31.
Damages assessed to trial:
On appeal to the district court, the jury trying issues joined
shall assess the damages of the plaintiff for the detention of his
possession to the time of the trial in that court; and, if the jury
finds that the detention was wrongful and that the appeal was
without merit and taken for the purpose of delay, the plaintiff, in
addition to any other damages allowed, shall be entitled to the
amount of rent in arrears, or which may have accrued, to the time of
trial in the district court.
Judgment for the rent in arrears and for the damages assessed
may, on motion, be rendered against the sureties to the
appeal. §42-32. (1868-9, c. 156, s. 28; Code, s. 1775; Rev.,
s. 2006; C.S., s. 2371; 1945, c. 796; 1971, c. 533, s. 7; 1979, c.
820, s. 7.)
Rent and costs tendered by tenant:
If, in any action brought to recover the possession of demised
premises upon a forfeiture for the nonpayment of rent, the tenant,
before judgment given in such action, pays or tenders the rent due
and the costs of the action, all further proceedings in such action
shall cease. If the plaintiff further prosecutes his action, and the
defendant pays into court for the use of the plaintiff a sum equal
to that which shall be found to be due, and the costs, to the time
of such payment, or to the time of a tender and refusal, if one has
occurred, the defendant shall recover from the plaintiff all
subsequent costs; the plaintiff shall be allowed to receive the sum
paid into court for his use, and the proceedings shall be stayed. §42-33.
Undertaking on appeal and order staying execution:
(a) Upon appeal to the district court, either party may
demand that the case be tried at the first session of the court
after the appeal is docketed, but the presiding judge, in his
discretion, may first try any pending case in which the rights of
the parties or the public demand it. If the case has not been
previously continued in district court, the court shall continue the
case for an appropriate period of time if any party initiates
discovery or files a motion to allow further pleadings pursuant to
G.S. 7A-220 or G.S. 7A-229, or for summary judgment pursuant to Rule
56 of the Rules of Civil Procedure.
(b) During an appeal to district court, it shall be
sufficient to stay execution of a judgment for ejectment if the
defendant appellant pays to the clerk of superior court any rent in
arrears as determined by the magistrate and signs an
undertaking that he or she will pay into the office of the clerk of
superior court the amount of the contract rent as it becomes due
periodically after the judgment was entered and, where applicable,
comply with subdivision (c) below. Provided however, when the
magistrate makes a finding in the record, based on evidence
presented in court, that there is an actual dispute as to the amount
of rent in arrears that is due and the magistrate specifies the
specific amount of rent in arrears in dispute, in order to stay
execution of a judgment for ejectment, the defendant appellant shall
not be required to pay to the clerk of superior court the amount of
rent in arrears found by the magistrate to be in dispute, even if
the magistrate's judgment includes this amount in the amount of rent
found to be in arrears. If a defendant appellant appeared at the
hearing before the magistrate and the magistrate found an amount of
rent in arrears that was not in dispute, and if an attorney
representing the defendant appellant on appeal to the district court
signs a pleading stating that there is evidence of an actual dispute
as to the amount of rent in arrears, then the defendant appellant
shall not be required to pay the rent in arrears alleged to be in
dispute to stay execution of a judgment for ejectment pending
appeal. Any magistrate, clerk, or district court judge shall order
stay of execution upon the defendant appellant's paying the
undisputed rent in arrears to the clerk and signing the undertaking.
If either party disputes the amount of the payment or the due date
in the undertaking, the aggrieved party may move for modification of
the terms of the undertaking before the clerk of superior court or
the district court. Upon such motion and upon notice to all
interested parties, the clerk or court shall hold a hearing and
determine what modifications, if any, are appropriate.
(c) In an ejectment action based upon alleged nonpayment
of rent where the judgment is entered more than five working days
before the day when the next rent will be due under the lease, the
appellant shall make an additional undertaking to stay execution
pending appeal. Such additional undertaking shall be the payment of
the prorated rent for the days between the day that the judgment was
entered and the next day when the rent will be due under the lease.
(c1) Notwithstanding the provisions of subsection (b) of
this section, an indigent defendant appellant, as set forth in G.S.
1-110, who prosecutes his or her appeal as an indigent and who meets
the requirement of G.S. 1-288 shall pay the amount of the contract
rent as it becomes periodically due as set forth in subsection (b)
of this section, but shall not be required to pay rent in arrears as
set forth in subsection (b) of this section in order to stay
execution pending appeal.
(d) The undertaking by the
appellant and the order staying execution may be substantially in
the following form:
"State of North Carolina,
"County of __________
"____________, Plaintiff
vs. Bond
to
"____________, Defendant Stay
Execution
On Appeal to District Court
"Now comes the defendant in the
above entitled action and
respectfully shows the court that judgment for summary ejectment
was entered against the defendant and for the plaintiff on the
________ day of ________, ________, by the Magistrate.
Defendant has appealed the judgment to the District Court.
"Pursuant to the terms of the
lease between plaintiff and
defendant, defendant is obligated to pay rent in the amount of
$________ per ________, due on the ________ day of each
________.
"Where the payment of rent in
arrears or an additional
undertaking is required by G.S. 42-34, the defendant hereby
tenders $________ to the Court as required.
"Defendant hereby undertakes to
pay the periodic rent
hereinafter due according to the aforesaid terms of the lease
and moves the Court to stay execution on the judgment for summary
ejectment until this matter is heard on appeal by the District
Court.
"This the ___ day of ______, ___.
Defendant
"Upon execution of the above bond, execution on said
judgment for summary ejectment is hereby stayed until the action is
heard on appeal in the District Court. If defendant fails to make
any rental payment to the clerk's office within five days of the due
date, upon application of the plaintiff, the stay of execution shall
dissolve and the sheriff may dispossess the defendant.
"This the ___ day of ______, ___.
Assistant Clerk of Superior Court."
(e) Upon application of the plaintiff, the clerk of
superior court shall pay to the plaintiff any amount of the rental
payments paid by the defendant into the clerk's office which are not
claimed by the defendant in any pleadings.
(f) If the defendant fails to make a payment within five
days of the due date according to the undertaking and order staying
execution, the clerk, upon application of the plaintiff, shall
issue execution on the judgment for possession.
(g) When it appears by stipulation executed by all of the
parties or by final order of the court that the appeal has been
resolved, the clerk of court shall disburse any accrued moneys of
the undertaking remaining in the clerk's office according to the
terms of the stipulation or order. § 42-34.
Rent pending execution of judgment; post bond pending
appeal:
(a) If the judgment in district court is against the
defendant appellant and the defendant appellant does not appeal the
judgment, the defendant appellant shall pay rent to the plaintiff
for the time the defendant appellant remains in possession of the
premises after the judgment is given. Rent shall be prorated if the
judgment is executed before the day rent would become due under the
terms of the lease. The clerk of court shall disperse any rent in
arrears paid by the defendant appellant in accordance with a
stipulation executed by all parties or, if there is no stipulation,
in accordance with the judge's order.
(b) If the judgment in district court is against the
defendant appellant and the defendant appellant appeals the
judgment, it shall be sufficient to stay execution of the judgment
if the defendant appellant posts a bond as provided in G.S.
42-34(b). If the defendant appellant fails to perfect the appeal or
the appellate court upholds the judgment of the district court, the
execution of the judgment shall proceed. The clerk of court shall
not disperse any rent in arrears paid by the defendant appellant
until all appeals have been resolved. § 42-34.1.
Restitution of tenant, if case quashed, etc., on appeal:
If the proceedings before the magistrate are brought before a
district court and quashed, or judgment is given against the
plaintiff, the district or other court in which final judgment is
given shall, if necessary, restore the defendant to the possession,
and issue such writs as are proper for that purpose. §42-35.
Damages to tenant for dispossession, if proceedings
quashed, etc:
If, by order of the magistrate, the plaintiff is put in
possession, and the proceedings shall afterwards be quashed or
reversed, the defendant may recover damages of the plaintiff for his
removal. §42-36.
Lease or rental of manufactured homes:
The provisions of this Article shall apply to the lease or
rental of manufactured homes, as defined in G.S. 143-145.
Judgments for possession more than 30 days old:
Prior to obtaining execution of a judgment that has been entered
for more than 30 days for possession of demised premises, a landlord
shall sign an affidavit stating that the landlord has neither
entered into a formal lease with the defendant nor accepted rental
money from the defendant for any period of time after entry of the
judgment. § 42-36.1A.
Notice to tenant of execution of writ for possession of
property; storage of evicted tenant's personal property:
(a) When Sheriff May Remove Property. -- Before removing a
tenant's personal property from demised premises pursuant to a writ
for possession of real property or an order, the sheriff shall give
the tenant notice of the approximate time the writ will be executed.
The time within which the sheriff shall have to execute the writ
shall be no more than seven days from the sheriff's receipt thereof.
The sheriff shall remove the tenant's property, as provided in the
writ, no earlier than the time specified in the notice, unless:
(1) The landlord, or his authorized
agent, signs a statement saying that the tenant's property can
remain on the premises, in which case the sheriff shall simply lock
the premises; or
(2) The landlord, or his authorized
agent, signs a statement saying that the landlord does not want to
eject the tenant because the tenant has paid all court costs charged
to him and has satisfied his indebtedness to the landlord.
Upon receipt of either statement by the landlord, the sheriff
shall return the writ unexecuted to the issuing clerk of court and
shall make a notation on the writ of his reasons. Thesheriff shall
attach a copy of the landlord's statement to the writ. If the writ
is returned unexecuted because the landlord signed a statement
described in subdivision (2) of this subsection, the clerk shall
make an entry of satisfaction on the judgment docket. If the sheriff
padlocks, the costs of the proceeding shall be charged as part of
the court costs.
(b) Sheriff May Store Property. -- When the sheriff
removes the personal property of an evicted tenant from demised
premises pursuant to a writ or order the tenant shall take
possession of his property. If the tenant fails or refuses to take
possession of his property, the sheriff may deliver the property to
any storage warehouse in the county, or in an adjoining county if no
storage warehouse is located in that county, for storage. The
sheriff may require the landlord to advance the cost of delivering
the property to a storage warehouse plus the cost of one month's
storage before delivering the property to a storage warehouse. If a
landlord refuses to advance these costs when requested to do so by
the sheriff, the sheriff shall not remove the tenant's property, but
shall return the writ unexecuted to the issuing clerk of court with
a notation thereon of his reason for not executing the writ. Except
for the disposition of manufactured homes and their contents as
provided in G.S. 42-25.9(g) and G.S. 44A-2(e2), within 10 days of
the landlord's being placed in lawful possession by execution of a
writ of possession and upon the tenant's request within that 10-day
period, the landlord shall release possession of the property to the
tenant during regular business hours or at a time agreed upon.
During the 10-day period after being placed in lawful
possession by execution of a writ of possession, a landlord may
move for storage purposes, but shall not throw away, dispose of, or
sell any items of personal property remaining on the premises unless
otherwise provided for in this Chapter. After the expiration of the
10-day period, the landlord may throw away, dispose of, or sell the
property in accordance with the provisions of G.S. 42-25.9(g). If
the tenant does not request release of the property within 10 days,
all costs of summary ejectment, execution and storage proceedings
shall be charged to the tenant as court costs and shall constitute a
lien against the stored property or a claim against any remaining
balance of the proceeds of a warehouseman's lien sale.
(c) Liability of the Sheriff. -- A sheriff who stores a
tenant's property pursuant to this section and any person acting
under the sheriff's direction, control, or employment shall be
liable for any claims arising out of the willful or wanton
negligence in storing the tenant's property.
(d) Notice. -- The notice required by subsection (a)
shall, except in actions involving the lease of a space for a
manufactured home as defined in G.S. 143-143.9(6), inform the tenant
that failure to request possession of any property on the premises
within 10 days of execution may result in the property being thrown
away, disposed of, or sold. Notice shall be made by one of the
following methods:
(1) By delivering a copy of the notice
to the tenant or his authorized agent at least two days before the
time stated in the notice for serving the writ;
(2) By leaving a copy of the notice at
the tenant's dwelling or usual place of abode with a person of
suitable age and discretion who resides there at least two days
before the time stated in the notice for serving the writ; or
(3) By mailing a copy of the notice by
first-class mail to the tenant at his last known address at least
five days before the time stated in the notice for serving the writ.
§ 42-36.2. ARTICLE 4A.
Retaliatory Eviction.
Defense of retaliatory eviction:
(a) It is the public policy of the State of North Carolina to
protect tenants and other persons whose residence in the household
is explicitly or implicitly known to the landlord, who seek to
exercise their rights to decent, safe, and sanitary housing.
Therefore, the following activities of such persons are protected by
law:
(1) A good faith complaint or request
for repairs to the landlord, his employee, or his agent about
conditions or defects in the premises that the landlord is obligated
to repair under G.S. 42-42;
(2) A good faith complaint to a
government agency about a landlord's alleged violation of any health
or safety law, or any regulation, code, ordinance, or State or
federal law that regulates premises used for dwelling purposes;
(3) A government authority's issuance of
a formal complaint to a landlord concerning premises rented by a
tenant;
(4) A good faith attempt to exercise,
secure or enforce any rights existing under a valid lease or rental
agreement or under State or federal law; or
(5) A good faith attempt to organize,
join, or become otherwise involved with, any organization promoting
or enforcing tenants' rights.
(b) In an action for summary ejectment pursuant to G.S. 42-26, a
tenant may raise the affirmative defense of retaliatory eviction and
may present evidence that the landlord's action is substantially in
response to the occurrence within 12 months of the filing of such
action of one or more of the protected acts described in subsection
(a) of this section.
(c) Notwithstanding subsections (a) and (b) of this section, a
landlord may prevail in an action for summary ejectment if:
(1) The tenant breached the covenant to
pay rent or any other substantial covenant of the lease for which
the tenant may be evicted, and such breach is the reason for the
eviction; or
(2) In a case of a tenancy for a
definite period of time where the tenant has no option to renew the
lease, the tenant holds over after expiration of the term; or
(3) The violation of G.S. 42-42
complained of was caused primarily by the willful or negligent
conduct of the tenant, member of the tenant's household, or their
guests or invitees; or
(4) Compliance with the applicable
building or housing code requires demolition or major alteration or
remodeling that cannot be accomplished without completely displacing
the tenant's household; or
(5) The landlord seeks to recover
possession on the basis of a good faith notice to quit the premises,
which notice was delivered prior to the occurrence of any of the
activities protected by subsections (a) and (b) of this section; or
(6) The landlord seeks in good faith to
recover possession at the end of the tenant's term for use as the
landlord's own abode, to demolish or make major alterations or
remodeling of the dwelling unit in a manner that requires the
complete displacement of the tenant's household, or to terminate for
at least six months the use of the property as a rental dwelling
unit. § 42-37.1.
Remedies:
(a) If the court finds that an ejectment action is retaliatory,
as defined by this Article, it shall deny the request for ejectment;
provided, that a dismissal of the request for ejectment shall not
prevent the landlord from receiving payments for rent due or any
other appropriate judgment.
(b) The rights and remedies created by this Article are
supplementary to all existing common law and statutory rights
and remedies. §42-37.2.
Waiver:
Any waiver by a tenant or a member of his household of the
rights and remedies created by this Article is void as contrary
to public policy. §42-37.3. ARTICLE 5.
Residential Rental Agreements.
Application:
This Article determines the rights, obligations, and
remedies under a rental agreement for a dwelling unit within
this State. §42-38.
Exclusions:
(a) The provisions of this Article shall not apply to
transient occupancy in a hotel, motel, or similar lodging subject to
regulation by the Commission for Health Services.
(a1) The provisions of this Article shall not apply to
vacation rentals entered into under Chapter 42A of the General
Statutes.
(b) Nothing in this Article shall apply to any dwelling
furnished without charge or rent. § 42-39.
Definitions:
For the purpose of this Article, the following definitions
shall apply:
(1) "Action" includes
recoupment, counterclaim,
defense, setoff, and any other proceeding including an action
for possession.
(2) "Premises" means a
dwelling unit, including
mobile homes or mobile home spaces, and the structure of which
it is a part and facilities and appurtenances therein and grounds,
areas, and facilities normally held out for the use of residential
tenants.
(3) "Landlord" means any owner
and any rental
management company, rental agency, or any other person having
the actual or apparent authority of an agent to perform the duties
imposed by this Article. § 42-40.
Mutuality of obligations:
The tenant's obligation to pay rent under the rental agreement
or assignment and to comply with G.S. 42-43 and the landlord's
obligation to comply with G.S. 42-42(a) shall be mutually dependent.
§42-41.
Landlord to provide fit premises:
(a) The landlord shall:
(1) Comply with the current applicable
building and housing codes, whether enacted before or after October
1, 1977, to the extent required by the operation of such codes; no
new requirement is imposed by this subdivision (a)(1) if a structure
is exempt from a current building code.
(2) Make all repairs and do whatever is
necessary to put and keep the premises in a fit and habitable
condition.
(3) Keep all common areas of the
premises in safe condition.
(4) Maintain in good and safe working
order and promptly repair all electrical, plumbing, sanitary,
heating, ventilating, air conditioning, and other facilities and
appliances supplied or required to be supplied by the landlord
provided that notification of needed repairs is made to the landlord
in writing by the tenant, except in emergency situations.
(5) Provide operable smoke detectors,
either battery-operated or electrical, having an Underwriters'
Laboratories, Inc., listing or other equivalent national testing
laboratory approval, and install the smoke detectors in accordance
with either the standards of the National Fire Protection
Association or the minimum protection designated in the
manufacturer's instructions, which the landlord shall retain or
provide as proof of compliance. The landlord shall replace or repair
the smoke detectors within 15 days of receipt of notification if the
landlord is notified of needed replacement or repairs in writing by
the tenant. The landlord shall ensure that a smoke detector is
operable and in good repair at the beginning of each tenancy. Unless
the landlord and the tenant have a written agreement to the
contrary, the landlord shall place new batteries in a
battery-operated smoke detector at the beginning of a tenancy and
the tenant shall replace the batteries as needed during the tenancy.
Failure of the tenant to replace the batteries as needed shall not
be considered as negligence on the part of the tenant or the
landlord.
(b) The landlord is not released of his obligations under
any part of this section by the tenant's explicit or implicit
acceptance of the landlord's failure to provide premises complying
with this section, whether done before the lease was made, when it
was made, or after it was made, unless a governmental subdivision
imposes an impediment to repair for a specific period of time not to
exceed six months.
Notwithstanding the provisions of this subsection, the
landlord and tenant are not prohibited from making a subsequent
written contract wherein the tenant agrees to perform specified work
on the premises, provided that said contract is supported by
adequate consideration other than the letting of the premises and is
not made with the purpose or effect of evading the landlord's
obligations under this Article. § 42-42.
Tenant to maintain dwelling unit:
(a) The tenant shall:
(1) Keep that part of the premises that
the tenant occupies and uses as clean and safe as the conditions of
the premises permit and cause no unsafe or unsanitary conditions in
the common areas and remainder of the premises that the tenant uses.
(2) Dispose of all ashes, rubbish,
garbage, and other waste in a clean and safe manner.
(3) Keep all plumbing fixtures in the
dwelling unit or used by the tenant as clean as their condition
permits.
(4) Not deliberately or negligently
destroy, deface, damage, or remove any part of the premises, nor
render inoperable the smoke detector provided by the landlord, or
knowingly permit any person to do so.
(5) Comply with any and all obligations
imposed upon the tenant by current applicable building and housing
codes.
(6) Be responsible for all damage,
defacement, or removal of any property inside a dwelling unit in the
tenant's exclusive control unless the damage, defacement or removal
was due to ordinary wear and tear, acts of the landlord or the
landlord's agent, defective products supplied or repairs authorized
by the landlord, acts of third parties not invitees of the tenant,
or natural forces.
(7) Notify the landlord, in writing, of
the need for replacement of or repairs to a smoke detector. The
landlord shall ensure that a smoke detector is operable and in good
repair at the beginning of each tenancy. Unless the landlord and the
tenant have a written agreement to the contrary, the landlord shall
place new batteries in a battery-operated smoke detector at the
beginning of a tenancy and the tenant shall replace the batteries as
needed during the tenancy. Failure of the tenant to replace the
batteries as needed shall not be considered as negligence on the
part of the tenant or the landlord.
(b) The landlord shall notify the tenant in writing of any
breaches of the tenant's obligations under this section except in
emergency situations. § 42-43.
General remedies, penalties, and limitations:
(a) Any right or obligation declared by this Chapter is
enforceable by civil action, in addition to other remedies of law
and in equity.
(a1) If a landlord fails to provide, install, replace, or
repair a smoke detector under the provisions of G.S. 42-42(a)(5)
within 30 days of having received written notice from the tenant or
any agent of State or local government of the landlord's failure to
do so, the landlord shall be responsible for an infraction and shall
be subject to a fine of not more than two hundred fifty dollars
($250.00) for each violation. The landlord may temporarily
disconnect a smoke detector in a dwelling unit or common area for
construction or rehabilitation activities when such activities are
likely to activate the smoke detector or make it inactive.
(a2) If a smoke detector is disabled or damaged, other
than through actions of the landlord, the landlord's agents, or acts
of God, the tenant shall reimburse the landlord the reasonable and
actual cost for repairing or replacing the smoke detector within 30
days of having received written notice from the landlord or any
agent of State or local government of the need for the tenant to
make such reimbursement. If the tenant fails to make reimbursement
within 30 days, the tenant shall be responsible for an infraction
and subject to a fine of not more than one hundred dollars ($100.00)
for each violation. The tenant may temporarily disconnect a smoke
detector in a dwelling unit to replace the batteries or when it has
been inadvertently activated.
(b) Repealed by Session Laws 1979, c. 820, s. 8.
(c) The tenant may not unilaterally withhold rent prior to
a judicial determination of a right to do so.
(d) A violation of this Article shall not constitute
negligence per se. § 42-44.
Early termination of rental agreement by military
personnel:
(a) Any member of the United States Armed Forces who (i)
is required to move pursuant to permanent change of station orders
to depart 50 miles or more from the location of the dwelling unit,
or (ii) is prematurely or involuntarily discharged or released from
active duty with the United States Armed Forces, may terminate his
rental agreement for a dwelling unit by providing the landlord with
a written notice of termination to be effective on a date stated in
the notice that is at least 30 days after the landlord's receipt of
the notice. The notice to the landlord must be accompanied by
either a copy of the official military orders or a written
verification signed by the member's commanding officer.
Upon termination of a rental agreement under this section,
the tenant is liable for the rent due under the rental agreement
prorated to the effective date of the termination payable at such
time as would have otherwise been required by the terms of the
rental agreement. The tenant is not liable for any other rent
or damages due to the early termination of the tenancy except the
liquidated damages provided in subsection (b) of this section.
If a member terminates the rental agreement pursuant to this
section 14 or more days prior to occupancy, no damages or penalties
of any kind shall be due.
(b) In consideration of early termination of the rental
agreement, the tenant is liable to the landlord for liquidated
damages provided the tenant has completed less than nine months of
the tenancy and the landlord has suffered actual damages due to loss
of the tenancy. The liquidated damages shall be in an amount
no greater than one month's rent if the tenant has completed less
than six months of the tenancy as of the effective date of
termination, or one-half of one month's rent if the tenant has
completed at least six but less than nine months of the tenancy as
of the effective date of termination.
(c) The provisions of this section may not be waived or
modified by the agreement of the parties under any
circumstances.
Nothing in this section shall affect the rights established
by G.S. 42-3. § 42-45.
Late fees:
(a) In all residential rental agreements in which a
definite time for the payment of the rent is fixed, the parties
may agree to a late fee not to exceed fifteen dollars ($15.00) or
five percent (5%) of the rental payment, whichever is greater, to be
charged by the lessor if any rental payment is five days or more
late.
(b) A late fee under this section may be imposed only one
time for each late rental payment. A late fee for a specific
late rental payment may not be deducted from a subsequent rental
payment so as to cause the subsequent rental payment to be in
default.
(c) Any provision of a residential rental agreement
contrary to the provisions of this section is against the public
policy of this State and therefore void and unenforceable. § 42-46.
ARTICLE 6.
Tenant Security Deposit Act.
Deposits from the tenant:
Security deposits from the tenant in residential dwelling
units shall be deposited in a trust account with a licensed and
insured bank or savings institution located in the State of North
Carolina or the landlord may, at his option, furnish a bond from an
insurance company licensed to do business in North Carolina. The
security deposits from the tenant may be held in a trust account
outside of the State of North Carolina only if the landlord provides
the tenant with an adequate bond in the amount of said deposits. The
landlord or his agent shall notify the tenant within 30 days after
the beginning of the lease term of the name and address of the bank
or institution where his deposit is currently located or the name of
the insurance company providing the bond. §42-50.
Permitted uses of the deposit:
Security deposits for residential dwelling units shall be
permitted only for the tenant's possible nonpayment of rent, damage
to the premises, nonfulfillment of rental period, any unpaid bills
which become a lien against the demised property due to the
tenant's occupancy, costs of re-renting the premises after breach by
the tenant, costs of removal and storage of tenant's property after
a summary ejectment proceeding or court costs in connection with
terminating a tenancy. Such security deposit shall not exceed an
amount equal to two weeks' rent if a tenancy is week to week, one
and one-half months' rent if a tenancy is month to month, and two
months' rent for terms greater than month to month. These deposits
must be fully accounted for by the landlord as set forth in G.S.
42-52. §42-51.
Landlord's obligations:
Upon termination of the tenancy, money held by the landlord
as security may be applied as permitted in G.S. 42-51 or, if not
so applied, shall be refunded to the tenant. In either case the
landlord in writing shall itemize any damage and mail or
deliver same to the tenant, together with the balance of the
security deposit, no later than 30 days after termination of the
tenancy and delivery of possession by the tenant. If the tenant's
address is unknown the landlord shall apply the deposit as permitted
in G.S. 42-51 after a period of 30 days and the landlord shall hold
the balance of the deposit for collection by the tenant for at least
six months. The landlord may not withhold as damages part of the
security deposit for conditions that are due to normal wear and tear
nor may the landlord retain an amount from the security deposit
which exceeds his actual damages. §42-52.
Pet deposits:
Notwithstanding the provisions of this section, the landlord
may charge a reasonable, nonrefundable fee for pets kept by the
tenant on the premises. §42-53.
Transfer of dwelling units:
Upon termination of the landlord's interest in the dwelling
unit in question, whether by sale, assignment, death,
appointment of receiver or otherwise, the landlord or his agent
shall, within 30 days, do one of the following acts, either of which
shall relieve him of further liability with respect to such payment
or deposit:
(1) Transfer the portion of such payment or deposit remaining
after any lawful deductions made under this section to the
landlord's successor in interest and thereafter notify the tenant by
mail of such transfer and of the transferee's name and address; or
(2) Return the portion of such payment or deposit remaining
after any lawful deductions made under this section to the tenant.
§42-54.
Remedies:
If the landlord or the landlord's successor in interest fails to
account for and refund the balance of the tenant's security deposit
as required by this Article, the tenant may institute a civil action
to require the accounting of and the recovery of the balance of the
deposit. In addition to other remedies at law and equity, the tenant
may recover damages resulting from noncompliance by the landlord;
and upon a finding by the court that the party against whom
judgment is rendered was in willful noncompliance with this Article,
the court may, in its discretion, allow a reasonable attorney's fee
to the duly licensed attorney representing the prevailing party,
such attorney's fee to be taxed as part of the cost of court. §42-55.
Application of Article:
The provisions of this Article shall apply to all persons,
firms, or corporations engaged in the business of renting or
managing residential dwelling units, excluding single rooms,
on a weekly, monthly or annual basis. §42-56.
ARTICLE 7.
Expedited Eviction of Drug Traffickers and Other Criminals.
Definitions:
As used in this Article:
(1) "Complete eviction" means
the eviction and removal of a tenant and all members of the tenant's
household.
(2) "Criminal activity" means
(i) activity that would constitute a violation of G.S. 90-95 other
than a violation of G.S. 90-95(a)(3), or a conspiracy to violate any
provision of G.S. 90-95 other than G.S. 90-95(a)(3); or (ii) other
criminal activity that threatens the health, safety, or right of
peaceful enjoyment of the entire premises by other residents or
employees of the landlord.
(3) "Entire premises" or
"leased residential premises" means a house, building,
mobile home, or apartment, whether publicly or privately owned,
which is leased for residential purposes. These terms include the
entire building or complex of buildings or mobile home park and all
real property of any nature appurtenant thereto and used in
connection therewith, including all individual rental units,
streets, sidewalks, and common areas. These terms do not include a
hotel, motel, or other guest house or part thereof rented to a
transient guest.
(4) "Felony" means a criminal
offense that constitutes a felony under North Carolina law.
(5) "Guest" means any natural
person who has been given express or implied permission by a tenant,
a member of the tenant's household, or another guest of the tenant
to enter an individual rental unit or any portion of the entire
premises.
(6) "Individual rental unit"
means an apartment or individual dwelling or accommodation which is
leased to a particular tenant, whether or not it is used or occupied
or intended to be used or occupied by a single family or household.
(7) "Landlord" means a person,
entity, corporation, or governmental authority or agency who or
which owns, operates, or manages any leased residential premises.
(8) "Partial eviction" means
the eviction and removal of specified persons from a leased
residential premises.
(9) "Resident" means any
natural person who lawfully resides in a leased residential premises
who is not a signatory to a lease or otherwise has no contractual
relationship to a landlord. The term includes members of the
household of a tenant.
(10) "Tenant" means any
natural person or entity who is a named party or signatory to a
lease or rental agreement, and who occupies, resides in, or has a
legal right to possess and use an individual rental unit. § 42-59.
Statement of Public Policy:
The General Assembly recognizes that the residents of this
State have the right to the peaceful, safe, and quiet enjoyment
of their homes. The General Assembly further recognizes that these
rights, as well as the health, safety, and welfare of residents, are
often jeopardized by the criminal activity of other residents of
rented residential property, but that landlords are often unable to
remove those residents engaged in criminal activity. In order to
ensure that residents of this State can have the peaceful, safe, and
quiet enjoyment of their homes, the provisions of this Article are
deemed to apply to all residential rental agreements in this State.
§ 42-59.1.
Nature of actions and jurisdiction:
The causes of action established in this Article are civil
actions to remove tenants or other persons from leased residential
premises. These actions shall be brought in the district court of
the county where the individual rental unit is located. If the
plaintiff files the complaint as a small claim, the parties shall
not be entitled to discovery from the magistrate. However, if such a
case is filed originally in the district court or is appealed from
the judgment of a magistrate for a new trial in the district court,
all of the procedures and remedies in this Article shall be
applicable. § 42-60.
Standard of proof:
The civil causes of action established in this Article shall be
proved by a preponderance of the evidence, except as otherwise
expressly provided in G.S. 42-64. § 42-61.
Parties:
(a) Who May Bring Action. -- A civil action pursuant to
this Article may be brought by the landlord of a leased residential
premises, or the landlord's agent, as provided for in G.S. 1-57 of
the General Statutes and in Article 3 of this Chapter.
(b) Defendants to the Action. -- A civil action pursuant
to this Article may be brought against any person within the
jurisdiction of the court, including a tenant, adult or minor member
of the tenant's household, guest, or resident of the leased
residential premises. If any defendant's true name is unknown to the
plaintiff, process may issue against the defendant under a
fictitious name, stating it to be fictitious and adding an
appropriate description sufficient to identify him or her.
(c) Notice to Defendants. -- A complaint initiating an
action pursuant to this Article shall be served in the same manner
as serving complaints in civil actions pursuant to G.S. 1A- 1, Rule
4 and G.S. 42-29. § 42-62.
Remedies and judicial orders:
(a) Grounds for Complete Eviction. -- Subject to the
provisions of G.S. 42-64 and pursuant to G.S 42-68, the court shall
order the immediate eviction of a tenant and all other residents of
the tenant's individual unit where it finds that:
(1) Criminal activity has occurred on or
within the individual rental unit leased to the tenant; or
(2) The individual rental unit leased to
the tenant was used in any way in furtherance of or to promote
criminal activity; or
(3) The tenant, any member of the
tenant's household, or any guest has engaged in criminal activity on
or in the immediate vicinity of any portion of the entire premises;
or
(4) The tenant has given permission to
or invited a person to return or reenter any portion of the entire
premises, knowing that the person has been removed and barred from
the entire premises pursuant to this Article or the reasonable rules
and regulations of a publicly assisted landlord; or
(5) The tenant has failed to notify law
enforcement or the landlord immediately upon learning that a person
who has been removed and barred from the tenant's individual rental
unit pursuant to this Article has returned to or reentered the
tenant's individual rental unit.
(b) Grounds for Partial Eviction and Issuance of Removal
Orders. -- The court shall, subject to the provisions of G.S. 42-64,
order the immediate removal from the entire premises of any person
other than the tenant, including an adult or minor member of the
tenant's household, where the court finds that such person has
engaged in criminal activity on or in the immediate vicinity of any
portion of the leased residential premises. Persons removed pursuant
to this section shall be barred from returning to or reentering any
portion of the entire premises.
(c) Conditional Eviction Orders Directed Against the
Tenant. -- Where the court finds that a member of the tenant's
household or a guest of the tenant has engaged in criminal activity
on or in the immediate vicinity of any portion of the leased
residential premises, but such person has not been named as a party
defendant, has not appeared in the action or otherwise has not been
subjected to the jurisdiction of the court, a conditional eviction
order issued pursuant to subsection (b) of this section shall be
directed against the tenant, and shall provide that as an express
condition of the tenancy, the tenant shall not give permission to or
invite the barred person or persons to return to or reenter any
portion of the entire premises. The tenant shall acknowledge in
writing that the tenant understands the terms of the court's order,
and that the tenant further understands that the failure to comply
with the court's order will result in the mandatory termination of
the tenancy pursuant to G.S. 42-68. § 42-63.
Affirmative defense or exemption to a complete eviction:
(a) Affirmative Defense. -- The court shall refrain from
ordering the complete eviction of a tenant pursuant to G.S. 42-63(a)
where the tenant has established that the tenant was not involved in
the criminal activity and that:
(1) The tenant did not know or have
reason to know that criminal activity was occurring 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 has engaged in criminal activity on or in the immediate
vicinity of any portion of the entire premises; or
(2) The tenant had done everything that
could reasonably be expected under the circumstances to prevent the
commission of the 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.
Notwithstanding the court's denial of eviction of the tenant,
if the plaintiff has proven that an evictable offense under G.S.
42-63 was committed by someone other than the tenant, the court
shall order such other relief as the court deems appropriate to
protect the interests of the landlord and neighbors of the tenant,
including the partial eviction of the culpable household members
pursuant to G.S. 42-63(b) and conditional eviction orders under G.S.
42-63(c).
(b) Subsequent Affirmative Defense to a Complete Eviction.
-- The affirmative defense set forth in subsection (a) of this
section shall not be available to a tenant in a subsequent action
brought pursuant to this Article unless the tenant can establish 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 criminal
activity.
(c) Exemption. -- Where the grounds for a complete
eviction have been established, the court shall order the eviction
of the tenant unless, taking into account the circumstances of the
criminal activity and the condition of the tenant, the court is
clearly convinced 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. The burden of proof
for the exemption set forth shall be by clear and convincing
evidence. § 42-64
Obstructing the execution or enforcement of a removal or
eviction order:
Any person who knowingly violates any order issued pursuant to
this Article or who knowingly interferes with, obstructs, impairs,
or prevents any law enforcement officer from enforcing or executing
any order issued pursuant to this Article, shall be subject to
criminal contempt under Article 1 of Chapter 5A of the General
Statutes. Nothing in this section shall be construed in any way to
preclude or preempt prosecution for any other criminal offense. §
42-65.
Motion to enforce eviction and removal orders:
(a) A motion to enforce an eviction or removal order
issued pursuant to G.S. 42-63(b) or (c) shall be heard on an
expedited basis and within 15 days of the service of the motion.
(b) Mandatory Eviction. -- The court shall order the
immediate eviction of the tenant where it finds that:
(1) The tenant has given permission to
or invited any person removed or barred from the leased residential
premises pursuant to this Article to return to or reenter any
portion of the premises; or
(2) The tenant has failed to notify
appropriate law enforcement authorities or the landlord immediately
upon learning that any person who had been removed and barred
pursuant to this Article has returned to or reentered the tenant's
individual rental unit; or
(3) The tenant has otherwise knowingly
violated an express term or condition of any order issued by court
pursuant to this Article. § 42-66.
Impermissible defense:
It shall not be a defense to an action brought pursuant to this
Article that the criminal activity was an isolated incident or
otherwise has not recurred. Nor is it a defense that the
person who actually engaged in the criminal activity no longer
resides in the tenant's individual rental unit. However, evidence of
such facts may be admissible if offered to support affirmative
defenses or grounds for an exemption pursuant to G.S. 42-64. §
42-67.
Expedited proceedings:
Where the complaint is filed as a small claim, the expedited
process for summary ejectment, as provided in Article 3 of this
Chapter and Chapter 7A of the General Statutes, applies. Where
the complaint is filed initially in the district court or a judgment
by the magistrate is appealed to the district court, the procedure
in G.S. 42-34(b) through (g), if applicable, and the following
procedures apply:
(1) Expedited Hearing. -- When a
complaint is filed initiating an action pursuant to this Article,
the court shall set the matter for a hearing which shall be held on
an expedited basis and within the first term of court falling after
30 days from the service of the complaint on all defendants or from
service of notice of appeal from a magistrate's judgment, unless
either party obtains a continuance. However, where a
defendant files a counterclaim, the court shall reset the trial for
the first term of court falling after 30 days from the defendant's
service of the counterclaim.
(2) Standards for Continuances. -- The
court shall not grant a continuance, nor shall it stay the civil
proceedings pending the disposition of any related criminal
proceedings, except as required to complete permitted discovery, to
have the plaintiff reply to a counterclaim, or for compelling and
extraordinary reasons or on application of the district attorney for
good cause shown.
(3) When Presented. -- The defendant in
an action brought in district court pursuant to this Article shall
serve an answer within 20 days after service of the summons and
complaint, or within 20 days after service of the appeal to district
court when the action was initially brought in small claims court.
The plaintiff shall serve a reply to a counterclaim in the answer
within 20 days after service of the answer.
(4) Extensions of Time for Filing. --
The parties to an action brought pursuant to this Article shall not
be entitled to an extension of time for completing an act required
by subdivision (3) of this section, except for compelling and
extraordinary reasons.
(5) Default. -- A party to an action
brought pursuant to this Article who fails to plead in accordance
with the time periods in subdivision (3) of this section shall be
subject to the provisions of G.S. 1A-1, Rule 55.
(6) Rules of Civil Procedure. -- Unless
otherwise provided for in this Article, G.S. 1A-1, the Rules of
Civil Procedure, shall apply in the district court to all actions
brought pursuant to this Article. § 42-68
Relation to criminal proceedings:
(a) Criminal Proceedings, Conviction, or Adjudication Not
Required. -- The fact that a criminal prosecution involving the
criminal activity is not commenced or, if commenced, has not yet
been concluded or has terminated without a conviction or
adjudication of delinquency shall not preclude a civil action or the
issuance of any order pursuant to this Article.
(b) Effect of Conviction or Adjudication. -- Where a
criminal prosecution involving the criminal activity results in a
final criminal conviction or adjudication of delinquency, such
adjudication or conviction shall be considered in the civil action
as conclusive proof that the criminal activity occurred.
(c) Admissibility of Criminal Trial Recordings or
Transcripts. -- Any evidence or testimony admitted in the criminal
proceeding, including recordings or transcripts of the adult or
juvenile criminal proceedings, whether or not they have been
transcribed, may be admitted in the civil action initiated pursuant
to this Article.
(d) Use of Sealed Criminal Proceeding Records. -- In the
event that the evidence or records of a criminal proceeding which
did not result in a conviction or adjudication of delinquency have
been sealed by court order, the court in a civil action brought
pursuant to this Article may order such evidence or records, whether
or not they have been transcribed, to be unsealed if the court finds
that such evidence or records would be relevant to the fair
disposition of the civil action. § 42-69.
Discovery:
(a) The parties to an action brought pursuant to this
Article shall be entitled to conduct discovery, if the action is
filed originally in or appealed to the district court, only in
accordance with this section.
(b) Any defendant must initiate all discovery within the
time allowed by this Article for the filing of an answer or
counterclaim.
(c) The plaintiff must initiate all discovery within 20
days of service of an answer or counterclaim by a defendant.
(d) All parties served with interrogatories, requests for
production of documents, and requests for admissions under G.S.1A-1,
Rules 33, 34, and 36 shall serve their responses within 20 days.
(e) Upon application by the plaintiff, or agreement of the
parties, the court shall issue a preliminary injunction against all
alleged illegal activity by the defendant or other identified
parties who are residents of the individual rental unit or guests of
defendants, pending the completion of discovery and any other wait
before the trial has occurred. § 42-70.
Protection of threatened witnesses or affiants.:
If proof necessary to establish the grounds for eviction
depends, in whole or in part, upon the affidavits or testimony of
witnesses who are not peace officers, the court may, upon a showing
of prior threats of violence or acts of violence by any defendant or
any other person, issue orders to protect those witnesses, including
the nondisclosure of the name, address, or any other information
which may identify those witnesses. § 42-71.
Availability of law enforcement resources to plaintiffs or
potential plaintiffs:
A law enforcement agency may make available to any person or
entity authorized to bring an action pursuant to this Article any
police report or edited portion thereof, or forensic laboratory
report or edited portion thereof, concerning criminal activity
committed on or in the immediate vicinity of the leased residential
premises. A law enforcement agency may also make any officer or
officers available to testify as a fact witness or expert witness in
a civil action brought pursuant to this Article. The agency shall
not disclose such information where, in the agency's opinion, such
disclosure would jeopardize an investigation, prosecution, or other
proceeding, or where such disclosure would violate any federal or
State statute. § 42-72.
Collection of rent:
A landlord shall be entitled to collect rent due and owing with
knowledge of any illegal acts that violate the provisions of this
act without such collection constituting a waiver of the alleged
defaults. § 42-73.
Preliminary or emergency relief:
The district court shall have the authority at any time to issue
a temporary restraining order, grant a preliminary injunction, or
take such other actions as the court deems necessary to enjoin or
prevent the commission of criminal activity on or in the immediate
vicinity of leased residential premises, or otherwise to protect the
rights and interests of all tenants and residents. A violation of
any such duly issued order or preliminary relief shall subject the
violator to civil or criminal contempt. § 42-74.
Cumulative remedies:
The causes of action and remedies authorized by this Article
shall be cumulative with each other and shall be in addition to, not
in lieu of, any other causes of action or remedies which may be
available at law or equity, including causes of action and remedies
based on express provisions of the lease not contrary to this
Article. §42-75.
Civil immunity:
Any person or organization who, in good faith, institutes,
participates in, or encourages a person or entity to institute or
participate in a civil action brought pursuant to this Article, or
who in good faith provides any information relied upon by any person
or entity in instituting or participating in a civil action pursuant
to this Article shall have immunity from any civil liability that
might otherwise be incurred or imposed. Any such person or
organization shall have the same immunity from civil liability with
respect to testimony given in any judicial proceeding conducted
pursuant to this Article. § 42-76.
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