Co-Counsel Bulletins

OOUTLINE ON LAW OF SUMMARY EJECTMENT

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Introduction: This handout was prepared by Joan Brannon of the Institute of Government and edited by Mark E. Sullivan. Comments, corrections and suggestions regarding this pamphlet should be sent to the address at the end of the last page.

A.  Grounds for Bringing Action

1. May be used to oust from dwelling, commercial building, mobile home or mobile home space.

2.  Only three instances when landlord may evict tenant]

a.  Tenant violated a provision of lease for which eviction is specified.

b.  Tenant failed to pay rent even if lease fails to specify this.

c.  Lease has expired and tenant refuses to leave.

3.  Remedy is always possession of property to landlord and sometimes money judgment also.

4.  1995 General Assembly authorized fourth ground for eviction from residential premises only -for criminal activity.

5.  Proof required of plaintiff for summary ejectment.

B.  Violating a condition in the lease. Landlord must prove the following four things and may prove the fifth.

1.  Landlord-tenant relationship between plaintiff and defendant.

2.  Lease provision seeking to enforce (for example, rent due on first day of month or no pets allowed ).

3.  That lease specifically provides that lease is or may be terminated or landlord may reenter and evict for breach of the lease condition involved (an automatic forfeiture clause). [If oral lease, landlord must testify that he and tenant agreed when entering into lease that if condition not met, landlord could reenter and evict.]

4.  Provision breached (e.g., tenant did not pay rent on time or tenant kept a dog on premises).

5.  Any damages due. Unpaid rent. Damages for occupancy from end of lease period to date of judgment. Special damages for physical injury to property (damages beyond normal wear and tear).

C.  Failure to pay rent.

1.   Landlord must prove the following four things and may prove the fifth.

2.  Landlord-tenant relationship between plaintiff and defendant.

3.  Terms of lease regarding amount of rent due and when due that he is seeking to enforce.

4.  Breach of lease by tenant (e.g., tenant did not pay rent on first of month).

5.  That landlord made demand from tenant for rent at least 10 days before filing lawsuit. [G.S. 42-3] [G.S. 42-3 protects landlords who have not provided in their lease for automatic forfeiture with a right to reenter and evict for failure to pay rent. Essentially, it provides that if there is no automatic forfeiture clause so that the landlord cannot sue under A. above, forfeiture of the lease occurs ten days after a demand for payment is made. The demand need not be made in any particular form unless the lease specifies a method for making the demand. It must be "a clear, unequivocal statement, either oral or written, requiring the lessee to pay all past due rent." [ Snipes v. Snipes , 55 N.C. App. 498, 504 (1982) (landlord's informing tenant that she "wanted to get all this business settled" does not constitute a demand").] If notice given by mail, should be sufficient to prove mailed without proving tenant actually received notice. ( Cf. Main St. Shops, Inc. v. Esquire Collections, Ltd ., 115 N.C. App. 510 (1994).]

6.  Any damages due (same as for breach of condition of lease).

D.  Holding over after end of lease period.

1.  The landlord must prove the following four things and may prove the fifth.

2.  Landlord-tenant relationship between plaintiff and defendant.

3.  Terms of lease regarding length (e.g., lease is for one year or lease is month-to-month).

4.  Breach of lease (e.g., term of lease has ended and tenant has not left). Landlord has given defendant notice to end the term. If written lease, whatever notice (if any) lease requires. If tenancy for years and no lease requirement for notice, no notice is required. If periodic tenancy, proper notice given to terminate lease. year to year ¾ one month before end of year. month to month ¾ one week. week to week ¾ two days. mobile home space ¾ 30 days.

5.  Any damages due (same as for breach of condition of lease).

E.  Criminal activity. See Section IX. below.

F.  Landlord-Tenant Relationship

1.  Summary ejectment is limited to simple relation of lessor and lessee. [ Hughes v. Mason , 84 N.C. 473 (1881)]

2.  Cannot use summary ejectment to eject a trespasser; nor may a mortgagee use it to eject a mortgagor.

3.  Seller-buyer relationship.

a.  If a person signs a contract to purchase property (installment land sale contract), not a landlord-tenant relationship, and seller cannot use summary ejectment to "evict" buyer who defaults. [ McCombs v. Wallace, 66 N.C. 481 (1881)] Applies even if contract specifies that default creates landlord-tenant relationship and landlord can evict. [ Hughes v. Mason , 84 N.C. 473 (1881)]

b.  If parties enter into a contract to purchase and the contract to purchase is completely cancelled by the vendor, the buyer becomes a tenant at will and can be evicted. [ Marantz Piano Co. v. Kincaid , 108 N.C. App. 693 (1993)]

c.  Finally, if the parties enter into a lease with an option to purchase at some time in the future, the relationship is that of landlord-tenant until the option to purchase is exercised. [ Jerome v. Setzer , 1745 N.C. 391 (1918)]

4.  Employer-employee relationship. Summary ejectment is not appropriate if the relationship is employer-employee, which means that landlord does not have to use summary ejectment if employer-employee relationship ends. However, for a defendant to avoid eviction on the basis that the rental of the premises is part of an employer-employee relationship must prove that the occupancy of the residence by the employee is reasonable necessary for the better performance of the particular service, inseparable from it, or required by the employer as essential to the employment. [ Simons v. Lebrun , 219 N.C. 42 (1941) (defendant hired as manager of two houses and allowed to live in room in one by employer not critical to job as manager and therefore not employer-employee relationship, but rather landlord-tenant relationship).

5.  Girlfriend-boyfriend or parent-child relationship

a.  Owner or tenant invites girlfriend or boyfriend to move in; later the owner or tenant wants person invited in to leave. The relationship between the two depends on the agreement between them. Essentially, court must look at whether the parties agreed that person moving in would have responsibility for paying rent or specific duty to share certain amount of expenses. If there is such an agreement, the person moving in is the tenant or subtenant of the original occupier and must be removed by summary ejectment. Otherwise, the person invited to move in is a guest and becomes a trespasser if doesn't leave when asked. [ Jackson v. U.S. , 357 A.2d 409 (D.C. 1976); Bernet v. Rogers , 519 N.W.2d 808 ( Iowa 1994)]

b.  Same reasoning would apply to adult child living in parent's home.

6.  Motel-guest relationship. Generally not landlord-tenant relationship; guest is a trespasser if asked to leave and doesn't. However, an occupant of a hotel for an extended period of time might become a tenant. Factors to consider are whether hotel was sole and permanent residence of occupant, length of occupancy, method of payments and what payments are called, whether rooms contained separate kitchens and baths, whether occupant had exclusive control of living quarters, whether occupant had separate keys, and whether owner provided services for the occupant such as cleaning or changing sheets. [ Baker v. Rushing , 104 N.C. 240 (1991)]

G  Tender as a Right to Have Eviction Dismissed

1.  G.S. 42-22 provides that if action brought "upon a forfeiture for the nonpayment of rent," and the tenant before judgment pays or tenders the rent due and costs of the action, all further proceedings in the case shall cease.

a.  Judge must dismiss the lawsuit if defendant tenders to plaintiff full amount of rent due plus court costs.

2.  This provision only applies to eviction for "failure to pay rent" as set out in II.B. above. [ Ryan v. Reynolds , 190 N.C. 563, 130 S.E. 156 (1925).] It does not apply if the action is brought for breach of condition of the lease (even when failure to pay rent is the condition breached) or for holding over after the end of the term (even if tenant has failed to pay rent).

a.  In breach of condition and holding over cases, landlord has option of accepting rent and if does may waive breach as set out in IV below or refusing any future rent and going forward with eviction action.

3.  Tender is an offer and ability to pay in cash the full amount of rent due and costs.

a.  Even if defendant has tendered before trial and landlord refused, defendant must bring cash into court. [ Ingold v. Phoenix Assurance Co ., 230 N.C. 142, 52 S.E.2d 366 (1949).]

b.  For purposes of tender, the defendant must pay the amount of rent that would have been paid by that date if the rent had been paid on time and court costs.

c.  Although no cases have indicated whether tenant must tender late fee, if any, in order to have action dismissed, it seems to me to be part of the rent and would be recoverable.

H.  Defenses by Tenant.

1.  Waiver of breach. If landlord accepts future rent knowing of the breach, he waives that breach and can't evict.

a.  Waiver of breach does not apply to eviction for criminal activity. [G.S. 42-73]

b.  If public housing authority (PHA) accepts rent knowing of a breach, acceptance does not constitute a waiver unless PHA agrees in writing to a waiver or takes no steps to enforce breach within 120 days. [G.S. 157-29(d)]

2.  Continued breach over period of time may result in modification of the lease to omit that particular condition of the lease.

3.  Tenant, of course, may offer evidence that disproves one of the elements landlord must prove.

I.  Procedural Issues Regarding Judgment

1.  Must make findings of fact and grant relief with regard to issue of eviction (i.e. whether landlord is entitled to possession of the premises) and with regard to any monetary damages sought..

2.  If tenant stayed execution of judgment with bond, must make clear what happens to bond paid into the clerk.

3.  Also need to be clear about the effect of the magistrate's judgment when appellant does not appear to prosecute action. G.S. 7A-228(c) provides that if case is regularly set for trial and appellant is called, the appeal shall be dismissed and in such case the magistrate's judgment shall be affirmed. Judge when dismissing case for failure to prosecute should specify in order that magistrate's judgment is affirmed.

4.  Effect is to make magistrate's judgment effective from date of entry of that judgment as if no appeal had ever been taken.

J.  Kinds of Leases

1.  Tenancy for years.

a.  Lease for specific period or definite period of time.

b.  Can be for a fraction of a year up to several years, but it has a specific ending date.

c.  No notice to vacate at the end of the tenancy required, since the parties are aware of the ending date but lease may specify notice.

d.   Holding over and paying/accepting rent after end of lease period may result in creation of a tenancy from period to period.

2.  Tenancy from period to period.

a.  Lease for an indefinite, nonfixed term that is renewable from one period of time to the next, such as month to month, week to week.

b.   Notice must be given to terminate lease at end of the period . Unless lease provides otherwise, the following notice must be given before the end of the term:

c.  one month, if from year to year.

d.   one week, if from month to month.

e.  two days, if from week to week.

f.  30 days no matter what the term of the periodic tenancy if terminating lease of a mobile home space.

3.  Tenancy at will.

a.  Lease that is created if no agreement has been reached between landlord and tenant or if the lease is void or time uncertain.

b.  Terminable by either party upon giving reasonable notice (some cases indicate no notice required).

K  Late payment fees.

1.  G.S. 42-46 provides that in residential rental agreements in which definite time for payment of rent is fixed, parties may agree to

a.  Late fee not to exceed greater of $15 or 5% of rental payment.

b.  To be charged if rental payment is 5 days or more late.

2.   Any late fee that doesn't comply with all three of these provisions (agreement, amount of fee, and when due) is against the public policy of the state and void and unenforceable. [G.S. 42-46]

a.  The landlord is not entitled to any late fee if the lease violates any of the provisions of the late fee statute. [ Friday v. United Dominion Realty Trust, Inc ., 155 N.C. App. 671, 575 S.E.2d 532 (2003) (where lease provided for late fee of $31 on a monthly rental payment of $610, landlord not entitled to any late fee even though actually charged tenant only $30 late fee).]

L.  Administrative or other fees.

1.  Landlord is entitled to charge administrative fee if for purpose other than late payment. [ Friday v. United Dominion Realty Trust, Inc ., 155 N.C. App. 671, 575 S.E.2d 532 (2003) (court upheld $75 administrative fee to be assessed if landlord filed legal papers against tenant).]

2.  Court implied it might look more closely if fee didn't reasonably relate to actual expenses. "A lease providing for a fee reasonably related to such an additional expense incurred not solely relating to rent being late does not violate. Such a fee is not a subterfuge.."

M.  Eviction for Criminal Activity.

1.  Two methods of evicting form criminal activity.

a.  State statutory provisions-G.S. 42-59 to -76. This statute applies to residential leases only.

b.  Breach of condition in lease for which lease has automatic forfeiture. Can apply to residential and commercial leases.

c.  The terms of the lease control.

d.  This method is used in residential leases almost exclusively in public housing evictions.

2.  Eviction based on state statute.

a.  Complete eviction (eviction of tenant and all persons taking under tenant.)

b.   The landlord must prove one of the following five things to evict the tenant:

1)   Criminal activity occurred on or within the individual rental unit leased to the tenant. Criminal activity as activity is conduct that would constitute a drug violation under G.S. 90-95 (except possession of a controlled substance); any activity that would constitute conspiracy to violate a drug provision; or any other criminal activity that threatens the health, safety, or right of peaceful enjoyment of premises by other residents or employees of landlord. "Individual rental unit" means an apartment or individual dwelling or accommodation that is leased to a particular tenant.

2)   The individual rental unit was used in any way in furtherance of or to promote criminal activity.

3)  The tenant, any member of the tenant's household, or any guest of the tenant engaged in criminal activity on or in the immediate vicinity of any portion of the entire premises. "Entire premises" means a house, building, mobile home or apartment that is leased and the entire building or complex of which it is a part, including the streets, sidewalks, and common areas.

4)  The tenant gave permission to or invited a person to return to or reenter the property after that person was removed and barred from the entire premises. The person could have been barred either by a proceeding under Article 7 of General Statutes Chapter 42 or by reasonable rules of a publicly-assisted landlord.

5)  The tenant failed to notify a law enforcement officer or the landlord immediately upon learning that a person who was removed and barred from the tenant's individual unit had returned to the tenant's rental unit.

c.  Affirmative defense. The landlord need not prove that the tenant was at fault. However, the tenant may raise and prove such a claim as an affirmative defense to the eviction.

d.  If the landlord proves one of the five grounds for eviction, the tenant may avoid complete eviction by proving that he or she was not involved in the criminal activity and

1)  did not know or have reason to know that criminal activity was taking place or would likely occur on or within the individual rental unit, that the individual rental unit was used in any way in furtherance of or to promote criminal activity, or that any member of the tenant's household or any guest engaged in criminal activity on or in the immediate vicinity of any portion of the entire premises; or

2)   had done everything that reasonably could have been expected under the circumstances to prevent the commission of criminal activity, such as requesting the landlord to remove the offending household member's name from the lease, reporting prior criminal activity to appropriate law enforcement authorities, seeking assistance from social service or counseling agencies, denying permission, if feasible, for the offending household member to reside in the unit, or seeking assistance from church or religious organizations.

e.  Even if the landlord has proved grounds for eviction, a judge may choose not to evict the tenant if, taking into account the circumstances of the criminal activity and the condition of the tenant, the judge finds, by clear, cogent, and convincing evidence, that immediate eviction or removal would be a serious injustice, the prevention of which overrides the need to protect the rights, safety, and health of the other tenants and residents of the leased residential premises.

f.  It is not a defense to an eviction that the criminal activity was an isolated incident or otherwise had not reoccurred or that the person who actually engaged in the criminal activity no longer resides in the tenant's individual unit, but such evidence can be considered if offered to support affirmative defense or as grounds for the judge to choose not to evict the tenant.

g.  Connection between eviction and criminal charges.

1)   A landlord may pursue an eviction for criminal activity even though no criminal charge has been brought.

2) If criminal charges have been brought, the eviction may go forward before the criminal proceeding is concluded or if the defendant was acquitted or the case dismissed.

3)   If a criminal prosecution involving the criminal activity results in a final conviction or adjudication of delinquency, conviction or adjudication is conclusive proof in the eviction proceeding that the criminal activity took place.

h.  Conditional eviction orders.

1)  The judge may issue against a tenant when

a)  the landlord proves that the criminal activity was committed by someone other than the tenant and the judge denies eviction of the tenant or

b)   the judge finds that a member of the tenant's household or the tenant's guest has engaged in criminal activity but that person was not named as a party in the action.

2)   A conditional eviction order does not immediately evict the tenant, but rather provides that as an express condition of the tenancy, the tenant may not give permission to or invite the barred person to return to or reenter any portion of the entire premises.

3)  The tenant must acknowledge in writing that he or she understands the terms of the court order and that failure to comply with the court's order will result in the mandatory termination of the tenancy.

4)  A landlord, who believes that a tenant has violated a conditional eviction order, may file a motion in the cause in the original eviction case.

5)   That motion shall be heard on an expedited basis and within fifteen days of service of the motion.

6)   At the hearing, the judge shall order the immediate eviction of the tenant if the judge finds that:

a)  the tenant has given permission to or invited any person removed or barred from the premises to return to or reenter any portion of the entire premises;

b)   the tenant has failed to notify appropriate law enforcement authorities or the landlord immediately upon learning that any person who had been removed and barred has returned to or reentered the tenant's individual rental unit; or

c)  the tenant has otherwise knowingly violated an express term or condition of any order issued by the court under this statute.

i.  Partial eviction. Judge may order removal from a tenant's premises of a person other than the tenant (and not disturb the tenant) when the judge finds that person has engaged in criminal activity on or in the immediate vicinity of some portion of the entire premises.

1)  For the judge to have jurisdiction to remove a person other than the tenant (and not the tenant), the person to be removed must have been made a party to the action.

2)  If name of person is unknown, complaint may name defendant as "John (or Jane) Doe", stating that to be a fictitious name and adding a description to identify him or her.

3)  The court should also bar the person from returning to or reentering any portion of the entire premises. [G.S. 42-63(b)]

4)   For special expedited procedural rules regarding continuances, defaults etc., see G.S. 42-68 and -70.

N.   Eviction from public housing.

1.   In 1988 with drug dealers 'increasingly imposing a reign of terror on public and other federally assisted low-income housing tenants," the U.S. Congress passed the Anti-Drug Abuse Act.

2.  T he Act provides that "public housing agency shall utilize leases which provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination. [42 U.S.C. § 1437(l)(6)]

3.  In Department of Housing & Urban Development v. Rucker , 535 U.S. 125, 122 S. Ct. 1230, 152 L. Ed.2d 258 (2002) the U.S. Supreme Court held that the federal statute does not require the public housing authority to prove that the tenant knew or should have know of the criminal activity if committed by a household member, guest, etc. before the tenant could be evicted. The Court said the statute was clear that no knowledge on the part of the tenant is required.

4.  This case overrules the three North Carolina Court of Appeals cases [ Charlotte Housing Authority v. Patterson , 120 N.C. App. 552 (1995); Charlotte Housing Authority v. Fleming , 123 N.C. App. 511 (1996); Maxton Housing Authority v. McLean , 70 N.C. App. 550 (1984)], which had required, in federal housing cases, that the landlord prove fault on the part of the tenant. These cases are no longer applicable in evictions of tenants of public housing or low-income assisted housing for criminal activity when the lease has the anti-criminal activity provisions specified by Congress.

5.  The Court held that the statute entrusts the decision whether or not to evict to the PHA, who is in the best position to take account of the degree t which the housing project suffers from rampant drug-related or violent crime, the seriousness of the offending action, and the extent to which the tenant has taken all reasonable steps to prevent or mitigate the offending action. Thus, it is up to the PHA to decide whether to bring an eviction proceeding or not, but if they chose to bring one, tenant has no defenses except a violation did not occur or lease did not provide for termination (automatic forfeiture clause) for violation.

O.   Tenant's Rights and Remedies.

1.  Landlord must keep premises fit and habitable and must maintain in good, safe working order and promptly repair all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances supplied by him. [See G.S. 42-38 to -44]

2.  Tenant may sue for money damages for landlord's failure to comply (a rent abatement action), or may use as set off or defense in damages part of eviction action, but may not unilaterally withhold rent.

3.  Tenant may be able to make repairs and deduct.

4.   The only time tenant is required to give written notice is when tenant is seeking to have repair made in a non-emergency situation. Tenant is not required to give written notice if he is seeking to have unfit premises put in a fit and habitable condition. [ Surratt v. Newton, 99 N.C. App. 396 (1990).]

5.  Tenant cannot waive landlord's duties under act.

6.  Measure of damages for violation is difference between the fair market value of the premises as warranted (in other words fit and habitable) and the fair market value of the premises as is. [ Miller v. C.W. Myers Trading Post, 83 N.C. App. 362 (1987).] However, in rent abatement action, tenant is not entitled to recover more than the total amount paid landlord.

7.  It is not necessary for tenant to offer direct evidence of expert witness on fair rental value of premises as is. May be determined by what it would rent for in the open market or by evidence of other facts from which fair rental value may be determined. "From their own experience with living conditions, the jury could determine the 'as is' fair rental value by considering evidence on the conditions." [ Cotton v. Stanley , 86 N.C. App. 534, 539 (1987)]

8.  Violation of Residential Rental Agreement Act may also be unfair trade practice.

9.  Tenant may defeat eviction action if brought in retaliation for tenant's exercising rights under law. [See G.S. 42-37.1 to -37.3]

10.  Landlord may not evict by self help in residential leases; must use court; tenant may sue if improperly evicted. [G.S. 42-25.6 and -25.9] May use self-help evictions in commercial leases if can evict without a breach of the peace. [ Spinks v. Taylor , 303 N.C. 256 (1981).]

11.  Tenant may sue if landlord improperly seizes tenant's property to hold for back rent owed. [G.S. 42-25.7 and 25.9] * * * The CO-COUNSEL BULLETIN series of information papers for JAG officers in North Carolina is a product of the NC State Bar's Standing Committee on Legal Assistance for Military Personnel (LAMP). For comments or corrections, contact LAMP Committee member Mark E. Sullivan, 919-832-8507, or at law8507@aol.com.

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