An eviction is a process that allows a landlord to lawfully remove a tenant from the leased premises. In North Carolina, this can be a long and/or tedious process. There are four basic reasons that permit the eviction of a tenant:
When filing for an eviction, as the landlord, it is important to understand that even if the eviction is justified, the tenants can always find some way to defend themselves. Because of this, it is best that the landlord do their research before beginning the eviction process in order to know what is coming their way.
Nonpayment of rent
If a landlord is looking to evict their tenant due to a nonpayment of rent, the landlord must give a 10-day “notice to quit.” This notice to quit is a demand for payment by the landlord. Beginning on the day the notice is brought to the attention of the tenant, he or she has 10 days to pay their rent before the landlord is allowed to follow up with an eviction. The landlord cannot file for eviction until after the 10-day notice has been given and the tenant has failed to comply.
When a tenant remains on the premises after their lease or rental agreement has ended, they are known as a holdover tenant. As a landlord, you are not obligated to renew a lease with your tenant at the end of the current lease. If the landlord does not choose to renew the lease with their tenant, the tenant must then surrender possession of the property at the end of the current lease. Although a landlord has every right to not renew a lease, they are required to provide a termination notice prior to the end of the current lease. The criteria of this termination notice is listed below:
This notice of termination is also called an unconditional notice to quit, which says when the lease expires and states a deadline by which the tenant must vacate. If the tenant does not comply with the above notice, the landlord may proceed with the eviction process.
Violation of Lease
As a landlord, you have the legal right to evict your tenant if you find that they have violated or breached a specific condition of the lease. Such breaches may be that they have a pet even though the lease clearly states that pets are not allowed, or they have damaged property without making any reparations. Any willful or intentional damages made to the property are subject to a misdemeanor in the state of North Carolina. In a situation where a tenant has violated the lease, the landlord has no legal obligations to provide a notice before evicting the tenant. Unless the lease requires notice and an opportunity to cure, the landlord can file eviction papers upon learning of a violation.
Illegal Criminal Activity
For landlords looking to evict their tenant due to illegal criminal activity taking place on the premises, the state of North Carolina has an expedited eviction process.
Defense by Tenants
There are seven main defenses tenants may use to fight an eviction in North Carolina. While some of these defenses only relate to one or two of the reasons for eviction, most of them are applicable to all four reasons to evict a tenant.
Serving Eviction Papers in North Carolina
After providing the tenant with a required notice, the landlord may then file for the eviction process through either the small claims court or the district court. It is important that the summons and the complaint are filed in the county in which the rental property is located. A complaint is a legal document that states the reasons one party seeks legal action against another. A clerk will provide a form titled “complaint in summary ejectment.” When filling out this complaint, the landlord must list all tenants whose names appear on the lease or rental agreement. A summons is a legal document that notifies a defendant (the tenant) that an action has been commenced. The summons will state a date and time on which the tenant should appear at a specified location to answer the complaint.
Once the landlord has filled out all of the necessary paperwork, the county sheriff will serve the tenant with the summons and a copy of the complaint. After receiving these papers, the tenant may do one of two things: vacate the premises or fight the eviction at the eviction hearing. The tenant is not required to appear at the eviction hearing, however, it is highly recommended. If the tenant does not appear in court, it is known as a default judgment, meaning that the landlord automatically wins. After winning the eviction hearing or appeal, the landlord will then file for a “writ of possession,” which allows the landlord to forcibly remove the tenant from the premises. If the tenant remains on the property, the county sheriff will accompany the landlord and padlock the premises within seven days of receiving the writ of possession.
With it being summer time, many people are planning to go on vacation to the beach, mountains, or lake. When you rent a vacation rental property in North Carolina, you need to be aware of the North Carolina Vacation Rental Act. This Act applies to residential property rented for vacation, leisure, or recreational purposes for fewer than 90 days. Renters must have a permanent residence elsewhere to which they intend to return.
If you own a vacation rental property, to be covered by the North Carolina Vacation Rental Act, you must get an agreement in writing with any tenant. The agreement must clearly state that the rental is covered by the Vacation Rental Act, and that you may evict the tenant using an expedited procedure. The agreement is only enforceable after the tenant signs it, pays money to you or a management company on your behalf, or takes possession of the property.
If you purchase a vacation rental home, be sure to check with the seller in regards to any existing vacation rental agreements. As an owner, you must honor any vacation rental agreements that end within 180 days from when you record your interest in the vacation property with the register of deeds. The seller must inform the purchaser of any rental agreements affecting the vacation property, and provide the purchaser with a copy of any agreements within 10 days of the transfer of the vacation property. As the new owner, you must provide notice to any tenant within 20 days of purchasing the property.
As a vacation rental property owner, you have a duty to maintain the property in a fit and habitable condition. This means that you must comply with all building and housing codes, make any and all necessary repairs, keep the property in safe condition, and provide smoke and carbon monoxide detectors. If the owner fails to maintain the vacation property in a fit and habitable condition, the owner must either provide the tenant with a reasonably comparable property, or refund all payments made by the tenant.
A vacation rental property owner may also require a tenant to pay a security deposit. The security deposit may be charged to cover such things as non-payment of rent, damage to the premises, the cost of re-renting the vacation property if the tenant breaches the rental agreement, the costs of unpaid additional utility charges (ex. pay-per-view movie rental expenses or long-distance telephone expenses), and court costs for terminating a tenancy. The security deposit must be held in a North Carolina trust account throughout the tenancy, and must either be applied as permitted, or refunded to the tenant within 45 days of termination of the tenancy.
As any vacation rental property owner has likely experienced, the vacation property will likely sustain damages at some point by a renter. Vacation rental tenants are responsible for any and all damages, defacement, and/or removal of property inside the vacation property during their stay. These expenses may be covered by any potential security deposit, or the owner may have to pursue a legal action in court to recover damages. The renter is not responsible for damage due to ordinary wear and tear, or acts of nature (ex. hurricane or flooding damage to a beach house).
If a renter violates the terms of a rental agreement while occupying the vacation property, the owner may chose to have the renter evicted. The North Carolina Vacation Rental Act allows an owner to evict a tenant in an expedited process. To qualify for an expedited eviction, the renter must have either overstayed their lease, materially breached a vacation rental agreement that by its terms allows for an eviction, failed to pay rent as required, or obtained the property by fraud or misrepresentation (ex. minor children getting their parents to rent a beach house for Spring Break). To initiate the expedited eviction process, the owner must provide the renter with four hours notice (either written or oral notice will suffice). The owner must then file a complaint with the clerk in the county where the property is located, and have a summons issued by the clerk. A law enforcement officer must serve the summons and complaint on the renter, and the eviction hearing will be held not sooner than 12 hours from issuance of the summons, and not longer than 48 hours from issuance of the summons. If the owner is successful at the hearing, a magistrate will issue an order evicting the renter from the property. The renter will then have 8 hours to vacate the property. If the renter chooses to appeal the eviction order, they must provide a bond in an amount that covers any rent due to the owner, and any damages the owner may sustain as a result of having to cancel other potential rental agreements.
If you are interested in renting your vacation home, it is recommended that you use a vacation rental agreement that complies with the North Carolina Vacation Rental Act. The North Carolina Association of Realtors has developed a form contract (No. 411-T) that meets the requirements of the Act. You may also use your own rental agreement, although you may want to consult with an attorney to review the agreement in detail to ensure that it complies with the vacation rental act. If you wish to discuss owning or renting vacation rental properties in North Carolina, contact Adkins Law to arrange a consultation.
At Adkins Law, we believe in providing top-notch, quality legal services at affordable prices. If you need to speak with an attorney regarding a family law matter, traffic citation or issue, or for your estate planning needs, contact Adkins Law to arrange a consultation. Adkins Law has offices in Huntersville and Ballantyne for your convenience.