From NC General Assembly http://www.ncleg.net/homePage.pl
Chapter 42.
Landlord and Tenant.
Article 1.
General Provisions.
¤ 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. Where a written lease
establishes a monthly rent that includes water and sewer
services under G.S. 62-110(g), the terms "rent" and "rental
payment", as used in this Chapter, mean base rent only. (1919,
c. 34; C.S., s. 2343; 2001-502, s. 2.)
¤ 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 30 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.)
¤ 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 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 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 within three
business days of the date on which the order is issued.
(2003-400, s. 5.)
Article 2.
Agricultural Tenancies.
¤ 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.
Article 2A.
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.)
Article 3.
Summary Ejectment.
¤ 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 additional rent owed by a tenant for
water and sewer services pursuant to G.S. 62-110(g) shall not be
used as a basis for termination of a lease. Any partial payment
of monthly rent shall be applied first to the base rent. (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.)
¤ 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 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.)
¤ 42-30. Judgment by confession or where plaintiff has
proved case.
The summons shall be returned according to its tenor, and
if on its return it appears to have been duly served, and if the
plaintiff proves his case by a preponderance of the evidence, or
the defendant admits the allegations of the complaint, the
magistrate shall give judgment that the defendant be removed
from, and the plaintiff be put in possession of, the demised
premises; and if any rent or damages for the occupation of the
premises after the cessation of the estate of the lessee, not
exceeding the jurisdictional amount established by G.S.
7A-210(1), be claimed in the oath of the plaintiff as due and
unpaid, the magistrate shall inquire thereof, and give judgment
as he may find the fact to be. (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).)
¤ 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 contract rent as it becomes
due periodically after the judgment was entered and, where
applicable, comply with subdivision (c) below. Provided however,
when the magistrate makes a finding in the record, based on
evidence presented in court, that there is an actual dispute as
to the amount of rent in arrears that is due and the magistrate
specifies the specific amount of rent in arrears in dispute, in
order to stay execution of a judgment for ejectment, the
defendant appellant shall not be required to pay to the clerk of
superior court the amount of rent in arrears found by the
magistrate to be in dispute, even if the magistrate's judgment
includes this amount in the amount of rent found to be in
arrears. If a defendant appellant appeared at the hearing before
the magistrate and the magistrate found an amount of rent in
arrears that was not in dispute, and if an attorney representing
the defendant appellant on appeal to the district court signs a
pleading stating that there is evidence of an actual dispute as
to the amount of rent in arrears, then the defendant appellant
shall not be required to pay the rent in arrears alleged to be
in dispute to stay execution of a judgment for ejectment pending
appeal. Any magistrate, clerk, or district court judge shall
order stay of execution upon the defendant appellant's paying
the undisputed rent in arrears to the clerk and signing the
undertaking. If either party disputes the amount of the payment
or the due date in the undertaking, the aggrieved party may move
for modification of the terms of the undertaking before the
clerk of superior court or the district court. Upon such motion
and upon notice to all interested parties, the clerk or court
shall hold a hearing and determine what modifications, if any,
are appropriate.
(c) In an ejectment action based upon alleged nonpayment of
rent where the judgment is entered more than five working days
before the day when the next rent will be due under the lease,
the appellant shall make an additional undertaking to stay
execution pending appeal. Such additional undertaking shall be
the payment of the prorated rent for the days between the day
that the judgment was entered and the next day when the rent
will be due under the lease.
(c1)Notwithstanding the provisions of subsection (b) of this
section, an indigent defendant appellant, as set forth in G.S.
1-110, who prosecutes his or her appeal as an indigent and who
meets the requirement of G.S. 1-288 shall pay the amount of the
contract rent as it becomes periodically due as set forth in
subsection (b) of this section, but shall not be required to pay
rent in arrears as set forth in subsection (b) of this section
in order to stay execution pending appeal.
(d) The undertaking by the appellant and the order staying
execution may be substantially in the following form:
"State of North Carolina,
"County of __________
"____________, Plaintiff
vs. Bond to
"____________, Defendant Stay Execution
On Appeal to
District Court
"Now comes the defendant in the above entitled action and
respectfully shows the court that judgment for summary ejectment
was entered against the defendant and for the plaintiff on the
________ day of ________, ________, by the Magistrate.
Defendant has appealed the judgment to the District Court.
"Pursuant to the terms of the lease between plaintiff and
defendant, defendant is obligated to pay rent in the amount of
$________ per ________, due on the ________ day of each
________.
"Where the payment of rent in arrears or an additional
undertaking is required by G.S. 42-34, the defendant hereby
tenders $________ to the Court as required.
"Defendant hereby undertakes to pay the periodic rent
hereinafter due according to the aforesaid terms of the lease
and moves the Court to stay execution on the judgment for
summary ejectment until this matter is heard on appeal by the
District Court.
"This the ___ day of ______, ___.
Defendant
"Upon execution of the above bond, execution on said judgment
for summary ejectment is hereby stayed until the action is heard
on appeal in the District Court. If defendant fails to make any
rental payment to the clerk's office within five days of the due
date, upon application of the plaintiff, the stay of execution
shall dissolve and the sheriff may dispossess the defendant.
"This the ___ day of ______, ___.
Assistant Clerk of Superior
Court."
(e) Upon application of the plaintiff, the clerk of superior
court shall pay to the plaintiff any amount of the rental
payments paid by the defendant into the clerk's office which are
not claimed by the defendant in any pleadings.
(f) If the defendant fails to make a payment within five days
of the due date according to the undertaking and order staying
execution, the clerk, upon application of the plaintiff, shall
issue execution on the judgment for possession.
(g) When it appears by stipulation executed by all of the
parties or by final order of the court that the appeal has been
resolved, the clerk of court shall disburse any accrued moneys
of the undertaking remaining in the clerk's office according to
the terms of the stipulation or order. (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.)
¤ 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.)
Article 4.
Forms.
¤ 42-37: Repealed by Session Laws 1971, c. 533, s. 11.
Article 4A.
Retaliatory Eviction.
¤ 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.)
Article 5.
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 Health Services.
(a1)The provisions of this Article shall not apply to
vacation rentals entered into under Chapter 42A of the General
Statutes.
(b) Nothing in this Article shall apply to any dwelling
furnished without charge or rent. (1973, c. 476, s. 128; 1977,
c. 770, ss. 1, 2; 1999-420, s. 3.)
¤ 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. (1977, c. 770, s. 1; 1979, c. 880, ss. 1,
2; 1999-420, s. 2.)
¤ 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.
(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).)
¤ 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 provided by
the landlord, or knowingly permit any person to do
so.
(5) Comply with any and all obligations imposed upon
the tenant by current applicable building and
housing codes.
(6) Be responsible for all damage, defacement, or
removal of any property inside a dwelling unit in
the tenant's exclusive control unless the damage,
defacement or removal was due to ordinary wear and
tear, acts of the landlord or the landlord's agent,
defective products supplied or repairs authorized
by the landlord, acts of third parties not invitees
of the tenant, or natural forces.
(7) Notify the landlord, in writing, of the need for
replacement of or repairs to a smoke detector. The
landlord shall ensure that a smoke detector is
operable and in good repair at the beginning of
each tenancy. Unless the landlord and the tenant
have a written agreement to the contrary, the
landlord shall place new batteries in a
battery-operated smoke detector at the beginning of
a tenancy and the tenant shall replace the
batteries as needed during the tenancy. Failure of
the tenant to replace the batteries as needed shall
not be considered as negligence on the part of the
tenant or the landlord.
(b) The landlord shall notify the tenant in writing of any
breaches of the tenant's obligations under this section except
in emergency situations. (1977, c. 770, s. 1; 1995, c. 111, s.
3; 1998-212, s. 17.16(j).)
¤ 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)
within 30 days of having received written notice from the tenant
or any agent of State or local government of the landlord's
failure to do so, the landlord shall be responsible for an
infraction and shall be subject to a fine of not more than two
hundred fifty dollars ($250.00) for each violation. The landlord
may temporarily disconnect a smoke detector in a dwelling unit
or common area for construction or rehabilitation activities
when such activities are likely to activate the smoke detector
or make it inactive.
(a2)If a smoke detector is disabled or damaged, other than
through actions of the landlord, the landlord's agents, or acts
of God, the tenant shall reimburse the landlord the reasonable
and actual cost for repairing or replacing the smoke detector
within 30 days of having received written notice from the
landlord or any agent of State or local government of the need
for the tenant to make such reimbursement. If the tenant fails
to make reimbursement within 30 days, the tenant shall be
responsible for an infraction and subject to a fine of not more
than one hundred dollars ($100.00) for each violation. The
tenant may temporarily disconnect a smoke detector in a dwelling
unit to replace the batteries or when it has been inadvertently
activated.
(b) Repealed by Session Laws 1979, c. 820, s. 8.
(c) The tenant may not unilaterally withhold rent prior to a
judicial determination of a right to do so.
(d) A violation of this Article shall not constitute
negligence per se. (1977, c. 770, s. 1; 1979, c. 820, s. 8;
1998-212, s. 17.16(k).)
¤ 42-45. Early termination of rental agreement by military
personnel.
(a)Any member of the United States Armed Forces who (i)
is required to move pursuant to permanent change of station
orders to depart 50 miles or more from the location of the
dwelling unit, or (ii) is prematurely or involuntarily
discharged or released from active duty with the United States
Armed Forces, may terminate his rental agreement for a dwelling
unit by providing the landlord with a written notice of
termination to be effective on a date stated in the notice that
is at least 30 days after the landlord's receipt of the notice.
The notice to the landlord must be accompanied by either a copy
of the official military orders or a written verification signed
by the member's commanding officer.
Upon termination of a rental agreement under this section,
the tenant is liable for the rent due under the rental agreement
prorated to the effective date of the termination payable at
such time as would have otherwise been required by the terms of
the rental agreement. The tenant is not liable for any other
rent or damages due to the early termination of the tenancy
except the liquidated damages provided in subsection (b) of this
section. If a member terminates the rental agreement pursuant
to this section 14 or more days prior to occupancy, no damages
or penalties of any kind shall be due.
(b) In consideration of early termination of the rental
agreement, the tenant is liable to the landlord for liquidated
damages provided the tenant has completed less than nine months
of the tenancy and the landlord has suffered actual damages due
to loss of the tenancy. The liquidated damages shall be in an
amount no greater than one month's rent if the tenant has
completed less than six months of the tenancy as of the
effective date of termination, or one-half of one month's rent
if the tenant has completed at least six but less than nine
months of the tenancy as of the effective date of termination.
(c) The provisions of this section may not be waived or
modified by the agreement of the parties under any
circumstances. Nothing in this section shall affect the rights
established by G.S. 42-3. (1987, c. 478, s. 1.)
¤ 42-46. Late fees.
(a)In all residential rental agreements in which a
definite time for the payment of the rent is fixed, the parties
may agree to a late fee not 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) 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 late fee shall be calculated in accordance with
subdivisions (1) and (2) of this subsection on the
tenant's share of the contract rent only, and the
rent subsidy shall not be included.
(b) A late fee under this section may be imposed only one
time for each late rental payment. A late fee for a specific
late rental payment may not be deducted from a subsequent rental
payment so as to cause the subsequent rental payment to be in
default.
(c) Any provision of a residential rental agreement contrary
to the provisions of this section is against the public policy
of this State and therefore void and unenforceable.
(d) A lessor shall not charge a late fee to a lessee because
of the lessee's failure to pay additional rent for water and
sewer services provided pursuant to G.S. 62-110(g). (1987, c.
530, s. 1; 2001-502, s. 4; 2003-370, s. 1.)
¤¤ 42-47 through 42-49: Reserved for future codification
purposes.
Article 6.
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 base rent
and additional rent for water and sewer services provided
pursuant to G.S. 62-110(g), damage to the premises,
nonfulfillment of rental period, any unpaid bills which become a
lien against the demised property due to the tenant's occupancy,
costs of re-renting the premises after breach by the tenant,
costs of removal and storage of tenant's property after a
summary ejectment proceeding or court costs in connection with
terminating a tenancy. 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.)
¤ 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 by the
tenant. If the tenant's address is unknown the landlord shall
apply the deposit as permitted in G.S. 42-51 after a period of
30 days and the landlord shall hold the balance of the deposit
for collection by the tenant for at least six months. The
landlord may not withhold as damages part of the security
deposit for conditions that are due to normal wear and tear nor
may the landlord retain an amount from the security deposit
which exceeds his actual damages. (1977, c. 914, s. 1.)
¤ 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. In addition to other
remedies at law and equity, the tenant may recover damages
resulting from noncompliance by the landlord; and upon a finding
by the court that the party against whom judgment is rendered
was in willful noncompliance with this Article, the court may,
in its discretion, allow a reasonable attorney's fee to the duly
licensed attorney representing the prevailing party, such
attorney's fee to be taxed as part of the cost of court. (1977,
c. 914, s. 1.)
¤ 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.
Article 7.
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.)