LANDLORD / TENANT HANDBOOK
HOW TO USE THIS HANDBOOK
Use this handbook somewhat like a dictionary, but really use it! Put it in some safe, reliable place so you’ll be sure to have it when you need it!
When housing problems arise, consult this handbook. Better yet, look at the Table of Contents before problems arise. Read the list of topics. Find the topics that cover your situation. Read these sections backward and forward until you understand them well.
Warning: Complete as it is, this Handbook may not cover your exact case. Nor is it meant as a substitute for specific legal advice on your particular case. If necessary, seek help (legal or otherwise) through the section on “Resources.”
TIPS FOR TENANTS/RENTERS
- Check your credit rating with the local Credit Bureau before making application to rent. You can be denied housing because of a bad credit rating.
- Inspect the property before signing a lease or rental agreement. Make a list of all damages and fixtures that need repair. Ask the landlord to sign or initial the list of repairs needed. If the landlord is not present or refuses, have a witness sign that they have noted needed repairs. Keep this list, for it will indicate any damage or repairs needed when you moved in and may help you get your security deposit back when you move.
- Read your lease carefully and be sure you understand it before signing.
- Ask for a copy of the lease or rental agreement which you and the landlord have signed.
- Always ask for a receipt which shows the date of payment of rent, the amount paid and the period covered by the rent (especially when paying in cash). If you pay rent by check or money order, you should also keep the returned check or a copy of the money order as your record of having paid.
- Immediately before you move out, have the landlord inspect the property for damages that may reduce your security deposit. Having witnesses present or taking photographs or video tapes of the dwelling also are useful if you must prove in court that the landlord wrongfully withheld your security deposit.
WHAT CAN HUMAN RELATIONS DO TO HELP
The Human Relations Commission and staff can:
- Help resolve disputes between you and your landlord or rental agent or assist you in writing a letter to your landlord.
- Assist you if the landlord ignores or refuses to make needed repairs.
- Inform you of your rights if your landlord tries to evict you for some unfair reason, such as your asking for repairs, etc.
- Mediate complaints of unfair treatment and discrimination in housing. Both federal and North Carolina law prohibit discrimination based upon race, creed, color, religion, sex, national origin, familial status (refusing to rent to families because they have children, including single parents and pregnant women, under 18 years of age) and discrimination on the basis of disability, such as blindness or being confined to a wheel chair.
If you feel you have been treated unfairly or discriminated against in renting/buying a house, contact the Human Relations Commission.
As a tenant, you must:
- Pay rent on time. State law does not allow tenants to withhold rent for any reason. You can be evicted for withholding rent.
- Comply with all terms of the lease. (Some landlords use documents called “rental agreements” or “contracts.” Regardless of what it is labelled, a written document concerning your agreement with your landlord is a lease.)
- Maintain property in safe and sanitary condition. Your security (damage) deposit can be withheld for damages to property.
- Your landlord can take you to court to recover funds for damages, if they exceed the amount of the security deposit, or to recover back rent.
- Clean and use correctly supplied fixtures, (sinks, commodes, tubs, etc.). You are responsible for damages done by anyone visiting you.
- Not disturb neighbors with loud excessively music, etc.
- You may enjoy the peaceful use and full enjoyment of the property or dwelling.
- The landlord must comply with the city’s minimum housing code.
- You cannot be locked out of a dwelling or evicted by the landlord except by order of a Magistrate (Small Claims Court) and eviction can be carried out, legally, only by the Sheriff’s Department.
- If you comply with the rental agreement, your security deposit must be returned within 30 days after you move out. If the landlord/agent says you have damaged the property, he is required to give you an itemized list of damages and cost of repairs before he/she can withhold your security (damage) deposit.
- If the landlord does not make necessary repairs within a reasonable period of time, you may ask the City Building Inspector to inspect the dwelling. If you are asked to move and you feel it is because you requested an inspection, you can protest the eviction in court as a “Retaliatory Eviction” (see EVICTION section under “Possible Defense to Summary Ejectment”.)
- You are protected by the Retaliatory Eviction Act for up to one year, unless your landlord can show good cause for evicting you, such as non-payment of rent, damage, etc.
- You should be informed in writing by your landlord, within 60 days of paying the deposit, in which bank his/her security deposit has been deposited or what type bonds have been purchased (unless such information is contained in the lease).
- If you do not receive, or you are unable to use, services normally provided by a landlord, such as heat, air conditioning, water, and hot water, for an unreasonable length of time, (through no fault of your own) you may be entitled to a rebate or reduced rental rate.
HOW A LANDLORD MAY EVICT A TENANT
North Carolina law does not permit a landlord to evict you except by taking you to court. This court action is called “summary ejectment.”
The landlord may not force you out. The landlord may not change the locks himself, nor try to evict you by turning the utilities off (water, electricity, etc.) The landlord may not attempt to evict or force you to pay rent by taking your personal property, except through court action.
You may leave voluntarily, but the only way a landlord can legally make you leave is by having the judge rule that you are to be evicted. Actual eviction must be carried out by the Sheriff or his deputies.
WHEN THE LANDLORD CAN USE SUMMARY EJECTMENT TO EVICT A TENANT
If you have a written lease, the landlord can bring a summary ejectment action for violation of one or more of its terms. Some written leases allow the landlord to do this immediately or with very little notice. Check the lease to determine the time period and any conditions which might apply. If there is no written lease, the landlord can bring a summary ejectment action for no reason at all after giving proper notice. If there is no written lease and you pay the rent on a monthly basis, the landlord must give at least seven days’ notice prior to the end of the month in which you last paid rent.
If rent is paid on a weekly basis, the landlord must give at least two days’ notice prior to the end of the week in which you last paid rent. If you rent a mobile home space, the landlord must give 30 days’ notice to vacate regardless of when you pay rent. These notices do not have to be in writing.
EVICTION FOR FAILURE TO PAY RENT
Most written leases say that the landlord can take you to court immediately and without notice for failure to pay rent on time. The landlord does not have to accept late rent. If there is no written lease and you fail to pay rent, the landlord must demand the rent from you 10 days before beginning a summary ejectment action for eviction. This demand does not have to be in writing.
Until the court rules that the landlord can have possession of the premises, you can stop the eviction if you offer all of the past due rent and late charges unless you have violated some condition of the lease or rental agreement. (If there are late charges, they must be limited to $15 or 5% of the rental payment, whichever is more.) If the landlord has started a summary ejectment action, you must also offer to pay the court costs in order to stop the eviction.
Remember that stopping an eviction by offering to pay past due rent and court costs works only if there is no written lease, unless the Landlord agrees to accept late rent and costs. Get such agreements in writing.
Going To Court
“Summary ejectment” is the name of the court action which a landlord must use to evict you.
The landlord starts the action by filing papers in court. The papers, called a “summons and complaint,” would be served on you by the Sheriff. The summons gives the date and time of the hearing, and the complaint gives the reason the landlord claims that you must be evicted (for example, non-payment of rent.)
The Court Hearing
The court hearing usually is held within a week after you are served with the summons and complaint. The case is heard in Small Claims Court before a judge who is called a Magistrate. Most landlords and tenants who appear in this court are not represented by a lawyer, though each can have his lawyer present if he wishes.
As the tenant, you are not required to go to court, but the landlord will probably win his case if you do not appear. You cannot stop the eviction by not going to court. However, you cannot not be arrested for failure to go to court either, because this is a civil, rather than a criminal action.
In court, the landlord must prove that the landlord-tenant relationship exists, that there is a lease (either written or oral), and that you have violated it, or that the lease has expired, or that the landlord has given you proper notice to leave.
If the landlord/agent claims that you did not pay rent, he must present evidence which shows that you failed to pay. Most Magistrates require written records. After the landlord presents his case, you can raise any defense you have. (See Possible Defenses to Summary Judgment section).
If the Magistrate believes the landlord, a judgment will be entered giving the landlord possession of the premises. The Magistrate can also give the landlord a judgment for the money which you owe, such as back rent, or because of damages to the premises.
After the judgment is entered by the court, the landlord still may not evict you by himself. Ten more days have to pass before the landlord may ask the Clerk of Court for for an execution of the judgment in order to put you out.
Within these 10 days, you can appeal to a higher court if you believe the Magistrate was wrong. You must file an appeal with the Clerk and pay the rent to the Clerk of Court (not to the landlord) as it becomes due in order to stay until the appeal is heard. The Clerk of Court has forms which explain how the appeal is done. If you cannot afford to appeal, you can file the appeal as a pauper.
After the 10 days have passed and you have not appealed, the landlord must ask the Clerk of Court for an execution of the judgment in order to put you out.
Remember that, even at this point, the landlord may not put you out himself but continue with the legal process.
The Clerk of Court will issue an execution to the Sheriff, ordering the Sheriff to remove you and lock the property. (Remember that the landlord must wait 10 days after the Magistrate issues the judgment before he can ask the Clerk for an execution of this judgment.) About a week will pass before the Sheriff actually comes out to evict you. (This time period can vary depending on the workloads of the Clerk and the Sheriff.)
The Sheriff should give you at least two days’ notice before he evicts you.
Remember that the only way the landlord can have you evicted is for the Sheriff to do so after the order of execution has been issued. At no time can the landlord put you out.
TENANT’S PERSONAL PROPERTY
Before the Sheriff evicts you, you must remove your personal property or it may be locked in the premises or stored.
In order to get your personal property back you may have to pay the costs of court, the execution and the storage proceedings, plus a storage charge for the property itself.
COLLECTING BACK RENT OR DAMAGES
If the Sheriff evicts you, and you do not pay that part of the judgment for back rent or damages, the landlord may ask the Sheriff to sell some of your property to satisfy the judgment. Many landlords do not do this, and since the State of North Carolina lets a tenant withhold a significant amount of property from the Sheriff, many tenants do not have enough property for the Sheriff to take. If the judgment is not paid, your credit may be hurt and you may find it more difficult to rent another place. You may pay off a judgment to the court at any time, even after the landlord has executed the judgment.
STAYING IN THE PREMISES AFTER JUDGMENT
Once the landlord gets a judgment against you, an offer of rent will not necessarily stop him from having you removed. Even if the landlord accepts the back rent, he can still have the Sheriff execute the judgment and put you out because the Court generally gives the landlord two things: possession and back rent.
Payment of back rent satisfies only one part of the judgment. Putting the tenant out and locking the premises satisfies the other part of the judgment.
You should be very sure that the landlord will agree in writing to withdraw the execution and let you stay in the premises before paying any rent after the judgment is entered and before the Sheriff executes.
POSSIBLE DEFENSES TO SUMMARY EJECTMENT
In order to raise these defenses, you must go to court at the time set for the trial and testify.
You also must have your witnesses present,(if any) and any documents or receipts which support your case. If the landlord claims that you are behind in rent, you can defend against this, if it is not true, with records showing payment (for example, receipts or canceled checks). To stop the landlord from getting possession of the premises, you must prove you owe no rent. Non-payment of any rent owed is never a defense to summary ejectment.
Failure to give proper notice is a defense if your landlord fails to give the required notice before beginning a summary ejectment action (see “When the Landlord Can Use Summary Ejectment to Evict a Tenant” and “Eviction for Failure to Pay Rent”.) These notices do not have to be in writing unless the lease requires it, so this defense may involve the landlord’s word against yours.
You may claim that the landlord failed to do necessary repairs to keep the dwelling fit and habitable and, therefore, you should not owe as much rent as the landlord is claiming. This will require proof (for example, witnesses, such as the City Housing Inspector). Even if you are successful, this will usually result in a reduced judgment for back rent and will not prevent a judgment for possession.
A landlord may evict you for breach of a lease provision. For example, the landlord may claim you are making excessive noise and disturbing the neighbors. The landlord must prove to the Magistrate that this occurred. Unless he has heard the disturbance himself, he must have witnesses present who can testify about it. If you have witnesses, you should have them testify.
The law says that a landlord may not evict a tenant because the tenant has tried to make the landlord keep the premises repaired, for example, by complaining to the landlord, or calling the Housing Inspector. If your landlord tries to evict you for this reason, it is called a “retaliatory eviction.” You must prove to the court that the landlord is evicting you for this reason. You can use this as a defense any time within 12 months after you have tried to get the landlord to do the repairs or called the City Building or Housing Inspector. You cannot use this defense if you are behind on the rent or you have violated the lease in some other way. This defense may not be used if the landlord cannot make the repairs while you are still living in the premises, or intends to live in the premises him/herself.
ACTIONS WHICH ARE NOT DEFENSES TO SUMMARY EJECTMENT
Non-payment of rent for any reason is never a defense to summary ejectment. You may never withhold rent to try to force your landlord to make repairs. You may not do or arrange to have the repairs done yourself and deduct the costs from the rent. You cannot stop the eviction by asking that the security deposit be applied to rent which is currently owed or is past due.
Landlord and Tenant.
§ 42‑1. 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. (1868‑9, c. 156, s. 3; Code, s. 1744; Rev., s. 1982; C.S., s. 2341.)
§ 42‑2. 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. (4 Anne, c. 16, s. 9; 1868‑9, c. 156, s. 17; Code, s. 1764; Rev., s. 947; C.S., s. 2342.)
§ 42‑3. Term forfeited for nonpayment of rent.
In all verbal or written leases of real property of any kind in 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. (1919, c. 34; C.S., s. 2343; 2001‑502, s. 2; 2004‑143, s. 1.)
§ 42‑4. 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. (1868‑9, c. 156, s. 5; Code, s. 1746; Rev., s. 1986; C.S., s. 2344.)
§ 42‑5. 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. (1868‑9, c. 156, s. 6; Code, s. 1747; Rev., s. 1987; C.S., s. 2345.)
§ 42‑6. 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. (1868‑9, c. 156, s. 7; Code, s. 1748; Rev., s. 1988; C.S., s. 2346.)
§ 42‑7. 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. (1868‑9, c. 156, s. 8; Code, s. 1749; Rev., s. 1990; C.S., s. 2347; 1931, c. 173, s. 1.)
§ 42‑8. 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. (32 Hen. VIII, c. 34; 1868‑9, c. 156, s. 18; Code, s. 1765; Rev., s. 1989; C.S., s. 2348.)
§ 42‑9. 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. (1868‑9, c. 156, s. 11; Code, s. 1752; Rev., s. 1985; C.S., s. 2349.)
§ 42‑10. 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. (1868‑9, c. 156, s. 10; Code, s. 1751; Rev., s. 1991; C.S., s. 2350.)
§ 42‑11. 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. (1883, c. 224; Code, s. 1761; Rev., s. 3686; C.S., s. 2351; 1993, c. 539, s. 402; 1994, Ex. Sess., c. 24, s. 14(c).)
§ 42‑12. 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. (1868‑9, c. 156, s. 12; Code, s. 1753; Rev., s. 1992; C.S., s. 2352.)
§ 42‑13. 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. (1883, c. 138; Code, s. 1760; Rev., s. 3682; C.S., s. 2353; 1993, c. 539, s. 403; 1994, Ex. Sess., c. 24, s. 14(c).)
§ 42‑14. 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 60 days before the end of the current rental period, regardless of the term of the tenancy. (1868‑9, c. 156, s. 9; Code, s. 1750; 1891, c. 227; Rev., s. 1984; C.S., s. 2354; 1985, c. 541; 2005‑291, s. 1.)
§ 42‑14.1. 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. (1987, c. 458, s. 1.)
§ 42‑14.2. 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. (1989, c. 592, s. 2; 1998‑212, s. 17.16A(b).)
§ 42‑14.3. Notice of conversion of manufactured home communities.
(a) In the event that an owner of a manufactured home community (defined as a parcel of land, whether undivided or subdivided, that has been designed to accommodate at least five manufactured homes) intends to convert the manufactured home community, or any part thereof, to another use that will require movement of the manufactured homes, the owner of the manufactured home community shall give each owner of a manufactured home and the North Carolina Housing Finance Agency notice of the intended conversion at least 180 days before the owner of a manufactured home is required to vacate and move the manufactured home, regardless of the term of the tenancy. Failure to give notice to each manufactured home owner as required by this section is a defense in an action for possession. The respective rights and obligations of the community owner and the owner of the manufactured home under their lease shall continue in effect during the notice period.
(b) Notwithstanding subsection (a) of this section, if a manufactured home community is being closed pursuant to a valid order of any unit of State or local government, the owner of the community shall be required to give notice of the closure of the community to each resident of the community and the North Carolina Housing Finance Agency within three business days of the date on which the order is issued. (2003‑400, s. 5; 2008‑107, s. 28.27(c).)
§ 42‑15. 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. (1876‑7, c. 283; Code, s. 1754; Rev., s. 1993; 1917, c. 134; C.S., s. 2355; 1933, c. 219; 1985, c. 689, s. 11.)
§ 42‑15.1. 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 remedies at law for the enforcement of the lien. (1959, c. 1291; 1985, c. 689, s. 12.)
§ 42‑16. 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 beginning of the action. (1876‑7, c. 283, s. 2; Code, s. 1755; Rev., s. 1994; C.S., s. 2356.)
§ 42‑17. 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. (1876‑7, c. 283, s. 3; Code, s. 1756; Rev., s. 1995; C.S., s. 2357; 1971, c. 533, s. 1.)
§ 42‑18. Tenant’s undertaking on continuance or appeal.
In case there is a continuance or an appeal from the magistrate’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. (1876‑7, c. 283, s. 3; Code, s. 1756; Rev., s. 1995; C.S., s. 2358; 1971, c. 533, s. 2.)
§ 42‑19. 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. (1876‑7, c. 283, s. 4; Code, s. 1757; Rev., s. 1996; C.S., s. 2359; 1973, c. 108, s. 17.)
§ 42‑20. 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. (1876‑7, c. 283, s. 5; Code, s. 1758; Rev., s. 1997; C.S., s. 2360; 1971, c. 533, s. 3.)
§ 42‑21. 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. (Code, s. 1796; Rev., s. 1998; C.S., s. 2361.)
§ 42‑22. 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. (1876‑7, c. 283, s. 6; 1883, c. 83; Code, s. 1759; Rev., ss. 3664, 3665; C.S., s. 2362; 1993, c. 539, s. 404; 1994, Ex. Sess., c. 24, s. 14(c).)
§ 42‑22.1. 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. (1949, c. 193; 1993, c. 539, s. 405; 1994, Ex. Sess., c. 24, s. 14(c).)
§ 42‑23. 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. (Pub. Loc. 1929, c. 40; Pub. Loc. 1935, c. 288; Pub. Loc. 1937, cc. 96, 600; Pub. Loc. 1941, c. 41; 1943, c. 68; 1945, c. 700; 1949, c. 136; 1953, c. 499, s. 1; 1955, c. 136; 1959, c. 1076; 1981, c. 97, s. 1.)
§ 42‑24. 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. (1876‑7, c. 283, s. 7; Code, s. 1762; 1893, c. 517; Rev., s. 1999; C.S., s. 2363.)
§ 42‑25. 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. (1868‑9, c. 156, s. 16; Code, s. 1763; Rev., s. 2000; C.S., s. 2364.)
§§ 42‑25.1 through 42‑25.5: Reserved for future codification purposes.
Ejectment of Residential Tenants.
§ 42‑25.6. 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.(1981, c. 566, s. 1; 1995, c. 419, s. 1.1.)
§ 42‑25.7. 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. 42‑25.9(d), 42‑25.9(g), 42‑25.9(h), or 42‑36.2. (1981, c. 566, s. 1; 1995, c. 460, s. 8.)
§ 42‑25.8. Contrary lease provisions.
Any lease or contract provision contrary to this Article shall be void as against public policy. (1981, c. 566, s. 1.)
§ 42‑25.9. 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, with 10 days after the sale, and will thereafter be delivered to he 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), 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. (1981, c. 566, s. 1; 1985, c. 612, ss. 1‑4; 1995, c. 460, ss. 1‑3; 1999‑278; ss. 1, 2.)
§ 42‑26. Tenant holding over may be dispossessed in certain cases.
(a) 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.
(b) An arrearage in costs owed by a tenant for water or sewer services pursuant to G.S. 62‑110(g) or electric service pursuant to G.S. 62‑110(h) shall not be used as a basis for termination of a lease under this Chapter. Any payment to the landlord shall be applied first to the rent owed and then to charges for electric service, or water or sewer service, unless otherwise designated by the tenant. (4 Geo. II, c. 28; 1868‑9, c. 156, s. 19; Code, ss. 1766, 1777; 1905, cc. 297, 299, 820; Rev., s. 2001; C.S., s. 2365; 2001‑502, s. 3; 2004‑143, s. 2; 2011‑252, s. 1.)
§ 42‑26.1: Expired.
§ 42‑27. 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, New Hanover, Northampton, Onslow, Pasquotank, Pender, Perquimans, Pitt, Polk, Randolph, Robeson, Rockingham, Rowan, Rutherford, Sampson, Stokes, Surry, Swain, Tyrrell, Union, Wake, Warren, Washington, Wayne, Wilson, Yadkin. (4 Geo. II, c. 28; 1868‑9, c. 156, s. 19; Code, ss. 1766, 1777; 1905, cc. 297, 299, 820; Rev., s. 2001, subsec. 4; 1907, cc. 43, 153; 1909, cc. 40, 550; C.S., s. 2366; Pub. Loc. Ex. Sess. 1924, c. 66; 1931, cc. 50, 194, 446; 1933, cc. 86, 485; 1935, c. 39; 1943, cc. 69, 115, 459; 1951, c. 279; 1953, c. 271; c. 499, s. 2; 1955, c. 93; 1961, c. 25; 1995 (Reg. Sess., 1996), c. 566, s. 1.)
§ 42‑28. 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. (1868‑9, c. 156, s. 20; 1869‑70, c. 212; Code, s. 1767; Rev., s. 2002; C.S., s. 2367; 1971, c. 533, s. 4; 1973, c. 1267, s. 4; 1979, c. 144, s. 4; 1981, c. 555, s. 4; 1983, c. 332, s. 2; 1985, c. 329, s. 1; 1989, c. 311, s. 3; 1993, c. 553, s. 73(c); 1995, c. 460, s. 4.)
§ 42‑29. 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, but at least two days prior to the day the defendant is required to appear to answer the complaint, excluding legal holidays, 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. (1868‑9, c. 156, s. 21; Code, s. 1768; Rev., s. 2003; C.S., s. 2368; 1973, c. 87; 1983, c. 332, s. 1; 1985, c. 102; 1995, c. 460, s. 5; 2009‑246, s. 1.)
§ 42‑30. Judgment by confession, where plaintiff has proved case, or failure to appear.
The summons shall be returned according to its tenor, and if on its return it appears to have been duly served, and if (i) the plaintiff proves his case by a preponderance of the evidence, (ii) the defendant admits the allegations of the complaint, or (iii) the defendant fails to appear on the day of court, and the plaintiff requests in open court a judgment for possession based solely on the filed pleadings where the pleadings allege defendant’s failure to pay rent as a breach of the lease for which reentry is allowed and the defendant has not filed a responsive pleading, 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 if supported by a preponderance of the evidence, give judgment as he may find the fact to be. (1868‑9, c. 156, s. 22; Code, s. 1769; Rev., s. 2004; C.S., s. 2369; 1971, c. 533, s. 5; 1973, c. 10; c. 1267, s. 4; 1979, c. 144, s. 5; 1981, c. 555, s. 5; 1985, c. 329, s. 1; 1989, c. 311, s. 4; 1993, c. 553, s. 73(d); 2005‑423, s. 10.)
§ 42‑31. 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. (1868‑9, c. 156, s. 23; Code, s. 1770; Rev., s. 2005; C.S., s. 2370; 1971, c. 533, s. 6.)
§ 42‑32. 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. (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.)
§ 42‑33. 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. (4 Geo. II, c. 28, s. 4; 1868‑9, c. 156, s. 26; Code, s. 1773; Rev., s. 2007; C.S., s. 2372.)
§ 42‑34. 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 tenant’s share of the contract rent as it becomes due periodically after the judgment was entered and, where applicable, comply with subdivision (c) below. For the sole purpose of determining the amount of rent in arrears pursuant to a judgment for possession pursuant to G.S. 42‑30(iii), the magistrate’s determination shall be based upon (i) the available evidence presented to the magistrate or (ii) the amounts listed on the face of the filed Complaint in Summary Ejectment. 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 within 10 calendar days of the date the motion is filed and determine what modifications, if any, are appropriate. No writ of possession or other execution of the magistrate’s judgment shall take place during the time the aggrieved party’s motion for modification is pending before the clerk of court.
(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 _____
vs. Bond to
“______, Defendant Stay Execution
On Appeal to
“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 _________, ____.
“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. (1868‑9, c. 156, s. 25; 1883, c. 316; Code, s. 1772; Rev., s. 2008; C.S., s. 2373; 1921, c. 90; Ex. Sess., 1921, c. 17; 1933, c. 154; 1937, c. 294; 1949, c. 1159; 1971, c. 533, s. 8; 1979, c. 820, ss. 1‑6; 1998‑125, s. 1; 1999‑456, s. 59; 2005‑423, s. 11; 2009‑279, s. 2.)
§ 42‑34.1. 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. (1998‑125, s. 2.)
§ 42‑35. 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. (1868‑9, c. 156, s. 27; Code, s. 1774; Rev., s. 2009; C.S., s. 2374; 1971, c. 533, s. 9.)
§ 42‑36. 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. (1868‑9, c. 156, s. 30; Code, s. 1776; Rev., s. 2010; C.S., s. 2375; 1971, c. 533, s. 10.)
§ 42‑36.1. 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. (1971, c. 764; 1985, c. 487, s. 8.)
§ 42‑36.1A. 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. (1995, c. 460, s. 7.)
§ 42‑36.2. 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. The sheriff 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. (1983, c. 672, s. 1; 1995, c. 460, s. 6; 1999‑278, ss. 3, 4.)
§ 42‑37: Repealed by Session Laws 1971, c. 533, s. 11.
§ 42‑37.1. 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. (1979, c. 807.)
§ 42‑37.2. 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. (1979, c. 807.)
§ 42‑37.3. 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. (1979, c. 807.)
Residential Rental Agreements.
§ 42‑38. Application.
This Article determines the rights, obligations, and remedies under a rental agreement for a dwelling unit within this State. (1977, c. 770, s. 1.)
§ 42‑39. 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 Public Health.
(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. (1973, c. 476, s. 128; 1977, c. 770, ss. 1, 2; 1999‑420, s. 3; 2007‑182, s. 2.)
§ 42‑40. 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.
(4) “Protected tenant” means a tenant or household member who is a victim of domestic violence under Chapter 50B of the General Statutes or sexual assault or stalking under Chapter 14 of the General Statutes. (1977, c. 770, s. 1; 1979, c. 880, ss. 1, 2; 1999‑420, s. 2; 2005‑423, s. 5.)
§ 42‑41. 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. (1977, c. 770, s. 1.)
§ 42‑42. 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.
(6) If the landlord is charging for the cost of providing water or sewer service pursuant to G.S. 42‑42.1 and has actual knowledge from either the supplying water system or other reliable source that water being supplied to tenants within the landlord’s property exceeds a maximum contaminant level established pursuant to Article 10 of Chapter 130A of the General Statutes, provide notice that water being supplied exceeds a maximum contaminant level.
(7) Provide a minimum of one operable carbon monoxide detector per rental unit per level, either battery‑operated or electrical, that is listed by a nationally recognized testing laboratory that is OSHA‑approved to test and certify to American National Standards Institute/Underwriters Laboratories Standards ANSI/UL2034 or ANSI/UL2075, and install the carbon monoxide 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. A landlord that installs one carbon monoxide detector per rental unit per level shall be deemed to be in compliance with standards under this subdivision covering the location and number of detectors. The landlord shall replace or repair the carbon monoxide 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 carbon monoxide 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 carbon monoxide 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. A carbon monoxide detector may be combined with smoke detectors if the combined detector does both of the following: (i) complies with ANSI/UL2034 or ANSI/UL2075 for carbon monoxide alarms and ANSI/UL217 for smoke detectors; and (ii) emits an alarm in a manner that clearly differentiates between detecting the presence of carbon monoxide and the presence of smoke. This subdivision applies only to dwelling units having a fossil‑fuel burning heater, appliance, or fireplace, and in any dwelling unit having an attached garage. Any operable carbon monoxide detector installed before January 1, 2010, shall be deemed to be in compliance with this subdivision.
(8) Within a reasonable period of time based upon the severity of the condition, repair or remedy any imminently dangerous condition on the premises after acquiring actual knowledge or receiving notice of the condition. Notwithstanding the landlord’s repair or remedy of any imminently dangerous condition, the landlord may recover from the tenant the actual and reasonable costs of repairs that are the fault of the tenant. For purposes of this subdivision, the term “imminently dangerous condition” means any of the following:
a. Unsafe wiring.
b. Unsafe flooring or steps.
c. Unsafe ceilings or roofs.
d. Unsafe chimneys or flues.
e. Lack of potable water.
f. Lack of operable locks on all doors leading to the outside.
g. Broken windows or lack of operable locks on all windows on the ground level.
h. Lack of operable heating facilities capable of heating living areas to 65 degrees Fahrenheit when it is 20 degrees Fahrenheit outside from November 1 through March 31.
i. Lack of an operable toilet.
j. Lack of an operable bathtub or shower.
k. Rat infestation as a result of defects in the structure that make the premises not impervious to rodents.
l. Excessive standing water, sewage, or flooding problems caused by plumbing leaks or inadequate drainage that contribute to mosquito infestation or mold.
(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. (1977, c. 770, s. 1; 1995, c. 111, s. 2; 1998‑212, s. 17.16(i); 2004‑143, s. 3; 2008‑219, ss. 2, 6; 2009‑279, s. 3; 2010‑97, s. 6(a).)
§ 42‑42.1. Water and electricity conservation.
(a) For the purpose of encouraging water and electricity conservation, pursuant to a written rental agreement, a landlord may charge for the cost of providing water or sewer service to tenants who occupy the same contiguous premises pursuant to G.S. 62‑110(g) or electric service pursuant to G.S. 62‑110(h).
(b) The landlord may not disconnect or terminate the tenant’s electric service or water or sewer services due to the tenant’s nonpayment of the amount due for electric service or water or sewer services. (2004‑143, s. 4; 2011‑252, s. 2.)
§ 42‑42.2. Victim protection – nondiscrimination.
A landlord shall not terminate a tenancy, fail to renew a tenancy, refuse to enter into a rental agreement, or otherwise retaliate in the rental of a dwelling based substantially on: (i) the tenant, applicant, or a household member’s status as a victim of domestic violence, sexual assault, or stalking; or (ii) the tenant or applicant having terminated a rental agreement under G.S. 42‑45.1. Evidence provided to the landlord of domestic violence, sexual assault, or stalking may include any of the following:
(1) Law enforcement, court, or federal agency records or files.
(2) Documentation from a domestic violence or sexual assault program.
(3) Documentation from a religious, medical, or other professional. (2005‑423, s. 6.)
§ 42‑42.3. Victim protection – change locks.
(a) If the perpetrator of domestic violence, sexual assault, or stalking is not a tenant in the same dwelling unit as the protected tenant, a tenant of a dwelling may give oral or written notice to the landlord that a protected tenant is a victim of domestic violence, sexual assault, or stalking and may request that the locks to the dwelling unit be changed. A protected tenant is not required to provide documentation of the domestic violence, sexual assault, or stalking to initiate the changing of the locks, pursuant to this subsection. A landlord who receives a request under this subsection shall change the locks to the protected tenant’s dwelling unit or give the protected tenant permission to change the locks within 48 hours.
(b) If the perpetrator of the domestic violence, sexual assault, or stalking is a tenant in the same dwelling unit as the victim, any tenant or protected tenant of a dwelling unit may give oral or written notice to the landlord that a protected tenant is a victim of domestic violence, sexual assault, or stalking and may request that the locks to the dwelling unit be changed. In these circumstances, the following shall apply:
(1) Before the landlord or tenant changes the locks under this subsection, the tenant must provide the landlord with a copy of an order issued by a court that orders the perpetrator to stay away from the dwelling unit.
(2) Unless a court order allows the perpetrator to return to the dwelling to retrieve personal belongings, the landlord has no duty under the rental agreement or by law to allow the perpetrator access to the dwelling unit, to provide keys to the perpetrator, or to provide the perpetrator access to the perpetrator’s personal property within the dwelling unit once the landlord has been provided with a court order requiring the perpetrator to stay away from the dwelling. If a landlord complies with this section, the landlord is not liable for civil damages, to a perpetrator excluded from the dwelling unit, for loss of use of the dwelling unit or loss of use or damage to the perpetrator’s personal property.
(3) The perpetrator who has been excluded from the dwelling unit under this subsection remains liable under the lease with any other tenant of the dwelling unit for rent or damages to the dwelling unit.
A landlord who receives a request under this subsection shall change the locks to the protected tenant’s dwelling unit or give the protected tenant permission to change the locks within 72 hours.
(c) The protected tenant shall bear the expense of changing the locks. If a landlord fails to act within the required time, the protected tenant may change the locks without the landlord’s permission. If the protected tenant changes the locks, the protected tenant shall give a key to the new locks to the landlord within 48 hours of the locks being changed. (2005‑423, s. 6.)
§ 42‑43. 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 or carbon monoxide 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 or carbon monoxide detector. The landlord shall ensure that a smoke detector and carbon monoxide detector are 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 and battery‑operated carbon monoxide 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. (1977, c. 770, s. 1; 1995, c. 111, s. 3; 1998‑212, s. 17.16(j); 2008‑219, s. 3.)
§ 42‑44. 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) or a carbon monoxide detector under the provisions of G.S. 42‑42(a)(7) 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 or carbon monoxide detector in a dwelling unit or common area for construction or rehabilitation activities when such activities are likely to activate the smoke detector or carbon monoxide detector or make it inactive.
(a2) If a smoke detector or carbon monoxide 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 or carbon monoxide 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 or carbon monoxide 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. (1977, c. 770, s. 1; 1979, c. 820, s. 8; 1998‑212, s. 17.16(k); 2008‑219, s. 4.)
§ 42‑45. Early termination of rental agreement by military personnel.
(a) Any member of the Armed Forces of the United States 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 Armed Forces of the United States, may terminate the member’s 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.
(a1) Any member of the Armed Forces of the United States who is deployed with a military unit for a period of not less than 90 days may terminate the member’s rental agreement for a dwelling unit by providing the landlord with a written notice of termination. 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. Termination of a lease pursuant to this subsection is effective 30 days after the first date on which the next rental payment is due or 45 days after the landlord’s receipt of the notice, whichever is shorter, and payable after the date on which the notice of termination is delivered.
(a2) 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. (1987, c. 478, s. 1; 2005‑445, s. 4.1; 2011‑183, s. 29(a), (b).)
§ 42‑45.1. Early termination of rental agreement by victims of domestic violence, sexual assault, or stalking.
(a) Any protected tenant may terminate his or her 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 shall be accompanied by either: (i) a copy of a valid order of protection issued by a court pursuant to Chapter 50B or 50C of the General Statutes, other than an ex parte order, (ii) a criminal order that restrains a person from contact with a protected tenant, or (iii) a valid Address Confidentiality Program card issued pursuant to G.S. 15C‑4 to the victim or a minor member of the tenant’s household. A victim of domestic violence or sexual assault must submit a copy of a safety plan with the notice to terminate. The safety plan, dated during the term of the tenancy to be terminated, must be provided by a domestic violence or sexual assault program which substantially complies with the requirements set forth in G.S. 50B‑9 and must recommend relocation of the protected tenant.
(b) Upon termination of a rental agreement under this section, the tenant who is released from the rental agreement pursuant to subsection (a) of this section is liable for the rent due under the rental agreement prorated to the effective date of the termination and payable at the time that would have been required by the terms of the rental agreement. The tenant is not liable for any other rent or fees due only to the early termination of the tenancy. If, pursuant to this section, a tenant terminates the rental agreement 14 days or more before occupancy, the tenant is not subject to any damages or penalties.
(c) Notwithstanding the release of a protected tenant from a rental agreement under subsection (a) of this section, or the exclusion of a perpetrator of domestic violence, sexual assault, or stalking by court order, if there are any remaining tenants residing in the dwelling unit, the tenancy shall continue for those tenants. The perpetrator who has been excluded from the dwelling unit under court order remains liable under the lease with any other tenant of the dwelling unit for rent or damages to the dwelling unit.
(d) The provisions of this section may not be waived or modified by agreement of the parties. (2005‑423, s. 7.)
§ 42‑45.2. Early termination of rental agreement by military and tenants residing in certain foreclosed property.
Any tenant who resides in residential real property containing less than 15 rental units that is being sold in a foreclosure proceeding under Article 2A of Chapter 45 of the General Statutes may terminate the rental agreement for the dwelling unit after receiving notice pursuant to G.S. 45‑21.17(4) by providing the landlord with a written notice of termination to be effective on a date stated in the notice that is at least 10 days after the date of the notice of sale. 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 the time that would have been required by the terms of the rental agreement. The tenant is not liable for any other rent or damages due only to the early termination of the tenancy. (2007‑353, s. 3.)
§ 42‑46. Authorized 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 inconsistent with the provisions of this subsection, to be chargeable only if any rental payment is five days or more late. If the rent:
(1) Is due in monthly installments, a landlord may charge a late fee not to exceed fifteen dollars ($15.00) or five percent (5%) of the monthly rent, whichever is greater.
(2) Is due in weekly installments, a landlord may charge a late fee not to exceed four dollars ($4.00) or five percent (5%) of the weekly rent, whichever is greater.
(3) Repealed by Session Laws 2009‑279, s. 4, effective October 1, 2009, and applicable to leases entered into on or after that date.
(b) A late fee under subsection (a) of 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) Repealed by Session Laws 2009‑279, s. 4, effective October 1, 2009, and applicable to leases entered into on or after that date.
(d) A lessor shall not charge a late fee to a lessee pursuant to subsection (a) of this section because of the lessee’s failure to pay for water or sewer services provided pursuant to G.S. 62‑110(g).
(e) Complaint‑Filing Fee. – Pursuant to a written lease, a landlord may charge a complaint‑filing fee not to exceed fifteen dollars ($15.00) or five percent (5%) of the monthly rent, whichever is greater, only if the tenant was in default of the lease, the landlord filed and served a complaint for summary ejectment and/or money owed, the tenant cured the default or claim, and the landlord dismissed the complaint prior to judgment. The landlord can include this fee in the amount required to cure the default.
(f) Court‑Appearance Fee. – Pursuant to a written lease, a landlord may charge a court‑appearance fee in an amount equal to ten percent (10%) of the monthly rent only if the tenant was in default of the lease; the landlord filed, served, and prosecuted successfully a complaint for summary ejectment and/or monies owed in the small claims court; and neither party appealed the judgment of the magistrate.
(g) Second Trial Fee. – Pursuant to a written lease, a landlord may charge a second trial fee for a new trial following an appeal from the judgment of a magistrate. To qualify for the fee, the landlord must prove that the tenant was in default of the lease and the landlord prevailed. The landlord’s fee may not exceed twelve percent (12%) of the monthly rent in the lease.
(h) Limitations on Charging and Collection of Fees.
(1) A landlord who claims fees under subsections (e) through (g) of this section is entitled to charge and retain only one of the above fees for the landlord’s complaint for summary ejectment and/or money owed.
(2) A landlord who earns a fee under subsections (e) through (g) of this section may not deduct payment of that fee from a tenant’s subsequent rent payment or declare a failure to pay the fee as a default of the lease for a subsequent summary ejectment action.
(3) It is contrary to public policy for a landlord to put in a lease or claim any fee for filing a complaint for summary ejectment and/or money owed other than the ones expressly authorized by subsections (e) through (g) of this section, and a reasonable attorney’s fee as allowed by law.
(4) 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.
(5) If the rent is subsidized by the United States Department of Housing and Urban Development, by the United States Department of Agriculture, by a State agency, by a public housing authority, or by a local government, any fee charged pursuant to this section shall be calculated on the tenant’s share of the contract rent only, and the rent subsidy shall not be included. (1987, c. 530, s. 1; 2001‑502, s. 4; 2003‑370, s. 1; 2004‑143, s. 5; 2009‑279, s. 4.)
§§ 42‑47 through 42‑49: Reserved for future codification purposes.
Tenant Security Deposit Act.
§ 42‑50. 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. (1977, c. 914, s. 1.)
§ 42‑51. Permitted uses of the deposit.
Security deposits for residential dwelling units shall be permitted only for the tenant’s possible nonpayment of rent and costs for water or sewer services provided pursuant to G.S. 62‑110(g) and electric service pursuant to G.S. 62‑110(h), damage to the premises, nonfulfillment of rental period, any unpaid bills that 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. The 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. (1977, c. 914, s. 1; 1983, c. 672, s. 3; 2001‑502, s. 5; 2004‑143, s. 6; 2011‑252, s. 3.)
§ 42‑52. 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 of the premises to the landlord. If the extent of the landlord’s claim against the security deposit cannot be determined within 30 days, the landlord shall provide the tenant with an interim accounting no later than 30 days after termination of the tenancy and delivery of possession of the premises to the landlord and shall provide a final accounting within 60 days after termination of the tenancy and delivery of possession of the premises to the landlord. 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. (1977, c. 914, s. 1; 2009‑279, s. 5.)
§ 42‑53. 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. (1977, c. 914, s. 1.)
§ 42‑54. 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. (1977, c. 914, s. 1.)
§ 42‑55. 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. The willful failure of a landlord to comply with the deposit, bond, or notice requirements of this Article shall void the landlord’s right to retain any portion of the tenant’s security deposit as otherwise permitted under G.S. 42‑51. 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, such willful noncompliance is against the public policy of this State and the court may award attorney’s fees to be taxed as part of the costs of court. (1977, c. 914, s. 1; 2009‑279, s. 6.)
§ 42‑56. 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. (1977, c. 914, s. 2.)
§ 42‑57. Reserved for future codification purposes.
§ 42‑58. Reserved for future codification purposes.
Expedited Eviction of Drug Traffickers and Other Criminals.
§ 42‑59. 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. (1995, c. 419, s. 1.)
§ 42‑59.1. 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. (1995, c. 419, s. 1.)
§ 42‑60. 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. (1995, c. 419, s. 1.)
§ 42‑61. 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. (1995, c. 419, s. 1.)
§ 42‑62. 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. (1995, c. 419, s. 1.)
§ 42‑63. 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. (1995, c. 419, s. 1.)
§ 42‑64. 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. (1995, c. 419, s. 1.)
§ 42‑65. 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. (1995, c. 419, s. 1.)
§ 42‑66. 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. (1995, c. 419, s. 1.)
§ 42‑67. 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. (1995, c. 419, s. 1.)
§ 42‑68. 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. (1995, c. 419, s. 1.)
§ 42‑69. 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. (1995, c. 419, s. 1.)
§ 42‑70. 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. (1995, c. 419, s. 1.)
§ 42‑71. 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. (1995, c. 419, s. 1.)
§ 42‑72. 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. (1995, c. 419, s. 1.)
§ 42‑73. 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. (1995, c. 419, s. 1.)
§ 42‑74. 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. (1995, c. 419, s. 1.)
§ 42‑75. 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. (1995, c. 419, s. 1.)
§ 42‑76. 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. (1995, c. 419, s. 1.)