No landlord wants to unnecessarily evict a tenant. It can be costly and involves loss of rent while the property is vacant and possible additional expenses in advertising, interviewing and finding another suitable tenant. Often, attempts to recover damages and past due rent are futile.
Still, a landlord has to follow the North Carolina eviction process if a tenant is not paying the rent or has violated a material provision in the lease that makes eviction a necessity.
Self-Eviction is Unlawful
All North Carolina landlords must obtain a court order to expel a tenant who refuses to leave after notice or demand is given. A landlord who ignores the judicial process may be liable to the tenant for damages.
Self-eviction refers to illegal measures to force a tenant from a leased property. This includes threatening the tenant, arranging for another tenant to move in before the expiration of the lease, denying the tenant access to the property, removing the tenant’s personal belongings or any other action to forcibly remove the tenant without a court order.
North Carolina 10-Day Notice
The North Carolina eviction notice for nonpayment of rent is 10-days. The notice should advise the tenant that the tenancy will be maintained if the entire rent owed is paid within the 10-day period or a legal action will be initiated to evict the tenant.
If the lease provides for automatic forfeiture of the premises upon nonpayment of rent after a certain time, any tender of the rent within the 10-days does not have to be accepted by the landlord.
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Lease Violation Evictions
The North Carolina eviction process does not specify a minimum period for the landlord to give a tenant notice to vacate the property if a material violation of the lease has occurred. In many cases, the written rental agreement will provide a time. Material violations can include having unauthorized pets or persons living on the premises or where a condition that violates the health or safety of others exists.
A landlord still has to serve a demand on the tenant or notice that he or she must vacate the unit by a certain date and that the tenancy has terminated because of the major breach. The law does not require a landlord to offer the tenant an opportunity to cure the breach within a certain time, but if the violation can be remedied by payment of an increased security deposit, removal of the pet or individuals or of an offending condition, the landlord will usually provide for it in the demand.
For cases where the tenant has been involved in drug trafficking or criminal activity on the premises, which adversely affects the health or safety of other tenants, there is an expedited process to remove the tenant. A court date under these circumstances must be set for trial within the first term of court falling 30-days after service of the complaint.
In month-to-month tenancies, the North Carolina eviction notice may only be 7-days and can be oral.
Should the tenant not pay the rent or fails to remedy a violation of the lease and refuses to vacate within the time provided in the North Carolina Eviction Notice, the landlord must file a Summons and Complaint in Summary Ejectment at the Magistrate’s Court. The documents are served by the Sheriff’s office either personally or by posting. The Summons contains the date, time and location of the eviction hearing. The tenant has no more than 7-days after the summons is issued to file an Answer.
The hearing is before a judge who considers the evidence of the landlord in support of his or her reason for evicting the tenant. If the tenant does not appear, the court can rely on the pleadings alone in issuing a judgment of possession to the landlord.
A tenant in the North Carolina eviction process may assert any of the following defenses:
- The breach of a lease provision is not substantial enough to warrant an eviction.
- The allegations are false.
- There was improper service.
- The notice was improper.
- The landlord waived eviction by accepting rent.
- If for criminal activity, the tenant had no knowledge of the activity or that the cotenant had violated any criminal or drug trafficking laws, or the tenant made reasonable attempts to prevent the activity.
- The eviction is in retaliation for the tenant having filed a complaint regarding the condition of the property.
- The eviction is based on the tenant’s religion, race, sex, national origin, creed, age, marital or family status, or disability.
Writ of Execution
If the landlord prevails, the court will award possession to the landlord. The tenant has 10-days to appeal the ruling or to vacate the property. If the tenant appeals, a rent bond must be posted. He or she is also liable for any additional rent incurred while remaining on the property whether an appeal is filed or not.
After 10-days, the landlord can obtain a Writ of Execution from the court, which is given to the Sheriff’s office to serve not more than 7 days after receipt. The Writ contains the date and approximate time the tenant must vacate. It must be served on the tenant at least 2 days before the Sheriff will appear to remove the tenant’s personal belongings. If the tenant is served by mail, it must be at least 5-days before the date of execution.
If the unit is padlocked by the sheriff on the execution date, the tenant is responsible for the cost. The landlord must place the items in storage for 10-days and must pay the costs when requested by the Sheriff on the day of execution. If the landlord refuses, the property will not be removed by the Sheriff and the writ returned to the court clerk who issued it.
Should the tenant not make a request for the property and pay all costs of summary ejectment, execution and storage, the property may be disposed of by the landlord.
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