by: Jacqueline Keenan
Do you feel that you are being threatened?
In North Carolina, it is illegal to try to stop a witness from testifying through threats or intimidation. Intimidation under this law can include threats of bodily harm or violence, cursing, vulgarity, or threatening language given the context of the statements as a whole.
These statements can be explicit, like “if you testify I’m going to break your arm,” or can contain language that implies a threat, like “I’ll give you a taste of your own medicine”, or “I’ll make you regret this”.
Threats made against a witness are a Class G Felony. In North Carolina, a Class G Felony alone can lead to a sentence of 8-31 months in prison. This is a serious crime!
Who is affected by this law?
The witness intimidation law protects any person who has been “summoned” or is “acting as a witness”.
It punishes any person who threatens, intimidates, attempts to intimidate, or prevents the attendance of a witness from any North Carolina state court.
The law also pertains to defendants in a criminal proceeding who threaten a witness in their case with the assertion or denial of parental rights.
What to do if you’re being threatened
If you are a witness and feel you are being threatened, it is important that you report the threat to the police or an attorney on the case, so they can take appropriate action.
If you’re interested in more information about witness intimidation, contact Adkins Law!
What happens if you were evicted in North Carolina? At this point you have been served with either a summons or a complaint. This means that you as the tenant are being noticed for not paying the rent, you have violated the lease agreement with your landlord. This is where you have a couple options as the tenant. Most of the times a tenant will move out after receiving notices like this. Sometimes a tenant will fight the eviction in court.
If you are wanting to fight an eviction with your current landlord in court. Then you may need to speak with a lawyer in Huntersville, NC. Adkins Law serves the Lake Norman area.
NC GS § 42-33
Upon receiving a notice to quit for nonpayment of rent and at any time before a final judgment is rendered, a tenant may pay the rent due in full in addition to any accrued late fees. However, the landlord may not be obligated to accept the payment. North Carolina law allows waiver of the ten-day notice provision if the waiver is conspicuously stated in the lease agreement (this is called a “forfeiture clause”). If an appropriate waiver exists, the landlord may proceed with the eviction even after tender of payment.
Adkins Law would be happy to help in this matter. Huntersville lawyers here to represent you. If you need assistance in your eviction case or would like to schedule a free consultation with an eviction attorney in Mecklenburg County, please contact Adkins Law. Adkins Law is
If you need assistance in evicting a tenant or would like to schedule a consultation with an eviction attorney in Mecklenburg County, please contact Adkins Law. Adkins Law is located in Huntersville and primarily serves Huntersville, Cornelius, Davidson, Charlotte, and Mecklenburg County. Call (704) 274-5677 to arrange a consultation.
When a married couple has a baby, North Carolina law states that both parents are automatically the legal parents of the child. This gives both mother and father all the rights and responsibilities of parenthood. This is not, however, the case with unmarried couples. When an unmarried couple has a child, the relationship between the father and the child is not immediately recognized. If an individual is in this type of situation and desires to have the obligations and benefits of having that parent-child relationship, one must establish paternity.
How to Establish Paternity
There are four basic routes to establishing paternity in the State of North Carolina. The first and most common way of establishing paternity is already being married prior to the time of the child’s birth. The second route to establishing paternity is also in regards to marriage. If the father and mother marry after the child is born, their child is legitimated retroactively, meaning going all the way back to birth.
The two other routes used to establish paternity that do not involve marriage are the following:
Sign an Affidavit of Parentage
Signing the affidavit is a totally voluntary process. An affidavit of parentage is a legally binding document that is very difficult to overturn. Many unmarried couples prefer to sign the affidavit at the hospital or birthing center. Because an affidavit is a sworn statement, the mother and father must sign it in the presence of official witnesses. By signing an affidavit, the mother and father are agreeing that the father is the biological and legal father of the child. This affidavit also establishes the father’s obligation to pay child support and the child’s right to inherit from the father. An affidavit of parentage provides the father with standing to seek a custody order from the court. Lastly, both parents must agree in the affidavit if the father’s name should be added to the birth certificate.
A paternity action can be presented in court by either of the parents, or by a lawyer for Child Support Services (CSS). The parties can settle the case on their own time or they can go to trial. If they choose to proceed into trial, the judge will decide whether the supposed father is the child’s legal and biological father. Either of the parties or the judge may request genetic testing, upon which everyone involved must submit to testing. If the results show a 97% probability of paternity or more, the court will establish paternity. Lastly, the judge will issue a final paternity order and make decisions regarding custody, visitation, and residency.
5 Benefits of Establishing Paternity
o The parents can work together to make decisions that are in the best interest of the child.
o Signing the affidavit secures the father’s right to go to court to ask for custody and visitation.
o The child’s birth certificate will include the mother’s and father’s name.
o The child is guaranteed the ability to access medical records from both sides of the family.
o A child with a legal father has access to benefits, through the father, such as, social security, medical insurance, and other state, federal, and inheritance benefits.
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.
A guardianship is an important legal tool that allows the Clerk of Superior Court to appoint one person or entity to make decisions on behalf of an incompetent adult (the ward). Guardians are typically appointed in instances of incapacity or disability. Say for example, an individual suffers a tragic accident and is placed in a medically induced coma to sustain further injuries. For the individual to have their personal wishes fulfilled while in a coma, the person must have a durable power of attorney and medical directives already in place prior to the accident. If the individual does not have those documents already in place, the court will appoint a guardian to make both financial and personal decisions for the comatose patient.
Types of Guardianships
North Carolina has three different types of guardianships: guardian of the person, guardian of the estate, and general guardian. Each of these guardianships have different stipulations that limit the guardian’s decision making power. The guardian of the person makes decisions about the ward’s personal care and well-being, such as housing and medical decisions. However, a guardian of the person is prohibited from handing the ward’s money. The guardian of the estate is only allowed to handle the ward’s finances and cannot make decisions about the ward’s personal care and well-being. Finally, a general guardian does not have the same limitations as the previously mentioned guardianships. General guardians have the power to make personal decisions for and handle the finances of the ward.
Deeming Someone Incompetent
There is a process to deeming an adult incompetent. First, a petition must be filed seeking to have someone declared incompetent. The person in question is entitled to a jury trial or the matter will be heard before the Clerk of Superior Court. Usually, there must be medical or psychological evidence to assist the jury or Clerk in deciding whether or not the person no longer has the ability to make decisions or care for himself.
Becoming a Guardian
Obtaining guardianship is also a process. Courts make their decisions based on the expressed wishes of the ward. In the event the ward is not able to express his or her wishes, the court will make a decision based on pre-incapacity documents (power of attorney or will). There are requirements that a person must meet in order to be considered by the courts for guardianship. In order to be considered for guardianship an individual must be qualified to serve and be a legal adult with no felonies or gross misdemeanor record implicating dishonesty (bribery, forgery, etc.).
Upon the court deeming that a person is qualified to act as a guardian, it is important that an individual seeks out a qualified family attorney. The attorney can execute a durable power of attorney and a duly probated will. Finally, the last step is to seek out the proper forms to fill out to obtain guardianship.
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.
By Elspeth Crawford
If an author has a copyright in his or her work, whether that work is a book, a piece of software, or some other creative endeavor, they are granted exclusive control over how the work can be used. However, that control is not complete. Other people can make limited use of that work so long as their use falls within certain guidelines. Those guidelines are called fair use, and this guide will look at their utility and limits.
Bounds of Fair Use
The bounds of fair use are set out in the Copyright Act of 1976. That law states that people are allowed to copy a creative work without permission from the author for certain limited purposes, including criticism, comment, news reporting, teaching, scholarship, or research. Sometimes, deciding whether fair use applies is easy. For example, if a teacher makes multiple copies of an excerpt from a copyrighted book to hand out to his or her students, such copying would be a fair use of the book. It would fall under the ‘teaching’ allowance specified in the law. However, most determinations of fair use are not so cut and dry.
Determining whether something falls within the ambit of fair use is a factually intensive process. Courts look at four different factors when making their decision. Not all of the factors apply to all works, and no one factor is determinative. The four factors are:
Purpose and Character of the Use
When deciding whether a work falls under fair use, a court will look at the purpose of the work. One thing they’ll look at is whether the work is commercial in nature. Say someone has taken a copyrighted photograph and used it in a collage. If they intend to sell this collage as its own work, the work would be commercial. If a work is commercial, it stands less of a chance of being found to be a fair use. If the artist did not intend to sell the collage but made it for his or her own personal benefit, it would not be commercial and would stand a better chance of being found to be a fair use.
However, even if that collage were commercial, it’s no guarantee that its creation can't be a fair use. Courts also look at whether a work is transformative, or sufficiently different from the original work so as not to be confused with it. Parodies fall into this category, as do works that re-appropriate the original work in a way that the original author did not contemplate.
Nature of the Copyrighted Work
The law has determined that some works, specifically those that are creative like novels and movies, are more worthy of copyright protection than those works that are not creative but just reproduce information, like the phone book. Information in something like the phone book is public and copying it would likely be a fair use, whereas copying a movie, which is a highly creative work, would not be.
Amount of Copyrighted Work Used
Say that a literary critic is reviewing a book and wants to print a short excerpt within the body of his review. Because the critic does not have a copyright in that book, he is in violation of the author’s copyright by printing a portion of it. However, a court may let this slide as a fair use because the amount of the book being reprinted is small when considering the book as a whole. The smaller amount of a copyrighted work someone uses when copying that work, the more likely a court is to hold that the copying is a fair use. Courts also look at whether the portion being copied is particularly important to the identity of the original work.
Effect of the Use on the Potential Value of the Copyrighted Work
The fourth factor in the fair use test, often called the most important factor, asks whether the potentially infringing work cuts in on a market which should be reserved for the original work. For example, if someone took it upon themselves to write and distribute a self-penned sequel to a popular novel, such a work would cut in on the sequel market for the original work. The unauthorized sequel would fail under this factor. If, however, that same someone wrote a parody of the original novel, that would likely be a fair use since the original author and copyright holder is very unlikely to want to enter into a market for books that make fun of his or her own creation. Basically, this factor asks whether an infringing work may cost the original copyright holder money. If it does, it’s less likely to be a fair use. If it does not, it’s more likely to be a fair use.
Remember that no one of the above four factors is determinative when deciding what is a fair use and what is not. A work can fail under one or two of the factors but still be considered a fair use if it succeeds under the remaining ones. Fair use is a complicated area of the law, and you should consult a copyright attorney if you have questions about whether a work you have created is protected under it.