Legal advice on Landlord or tenant in North Carolina

If You Are Renting from A Private Owner... When you consider a private residence for housing in North Carolina, you should check on the ownership of the property, and the source of the lease. There are a growing number of renters seeking legal help because a landlord did not have full ownership of a property. This has lead to renters being evicted because of the landlord's foreclosure or because the landlord never actually owned the house. A real owner has no obligation to allow a renter to stay, even if they have paid money or signed a purported lease. Speak to an attorney about running a title or tax record check. You should also make sure all the utilities are properly and legally installed on the property. Private homeowners might try do-it-yourself projects that leave you with shoddy electric or cable service. Illicit hook-ups are also the first warning sign of a scam landlord. If You Are Renting from a Company... Just because the property is owned or managed by professionals doesn't mean the renter has nothing to worry about. Check as many sites as possible featuring reviews of the community and the company. If your local office lacks an internet presence, other locations in the same state are often managed with similar protocols. Also, a lack of virtual presence could mean the landlord is not as professional as they appear. If you choose to visit a property, make sure you review the entire lease and ask questions of someone in authority. It might help to let the leasing office know you want such a person available when you view the property. Some leasing offices are staffed with personnel who are only meant to process paperwork, not answer questions about the legal contract you are considering. When you meet the person in authority, ask them about lease provisions that you might need changed, or that seem suspicious. You should also ask if they inspect inside the property regularly, and if or when that effects evictions or non-renewals of the lease. Also ask if they built the building themselves, so you know if a prior owner might be liable for structural issues, and ask what they do to prepare apartments between tenants. ALWAYS PAY YOUR RENT This is the number one way clients cause trouble for themselves. In North Carolina, a tenant does not have the right to decide to withhold rent. No matter how bad the landlord is, no matter what issues you have, pay the full rent on time. The law is setup so that a landlord has to mutually agree or a tenant has to sue or be sued before rent is reduced. If you and a landlord agree to a lower rate than what is stated in the lease, put it in writing as an amendment to the lease. Oral contracts are enforceable, but that often amounts to tenants and landlords giving conflicting testimony as evidence. A magistrate is going to want to enforce the lease. On that note... Get a Written Lease You can rent month-to-month on an oral lease in North Carolina. Your landlord would be allowed to increase the rent at the end of each rental period--at the end of every month! You would also only get a week's notice before the landlord could file for eviction. The eviction process itself is accelerated compared to the 30 days you get on an annual lease. Skip the hassle and uncertainty with a written lease. Read the entire lease. Do not skim it like it's the Terms and Conditions. The lease should specify the name and address of the landlord and tenants, the rent amount, the date rent is due, when rent is late, when the lease begins, and when it ends. This is the bare minimum for a decent lease. An attorney should check a lease a private landlord gives to you. I have seen leases with illegal late fees, terms that make the party who loses a legal battle pay attorneys fees, and more from cheap online leases. A consult with an attorney early is always cheaper than a lawsuit later. Don't Rent Until the Property is Ready Depending on the age of the property and length of the lease, you should expect some need for repairs during your tenancy. If the property needs significant repairs, don't sign a lease until it is ready. The lease makes you liable for rent whether or not you live at the property. Make sure to view the property before you sign, and make a checklist of items and their conditions for your own records. Be sure that: Windows and doors to the outside lock; Windows are sealed to the outside; Electrical outlets function; Clean vents and air filters; Batteries in smoke detectors; Toilets flush without issue; Water heats and doesn’t leak, and Any appliances are clean and run. Landlords are not required to provide appliances beyond toilets, sinks, and a tub or shower. The toilet might be an outhouse. Air conditioners and heaters are not required unless the temperature is outside a specific range for a number of days. Visit the property to know what you need to bring with you. When you get there Take Pictures If the landlord will permit it, take pictures of the property before you sign a lease. This will give an attorney or magistrate an idea of its condition before you had any effect on it. Once you move in, take pictures after any repairs are done. If a problem causes ongoing damage, take pictures periodically to show the progression of the damage. Always notify the landlord in writing if you need repairs. Even if you spoke to the landlord, send some form of writing and make sure it is dated. Texting with the landlord may be sufficient, but letters are better. Lastly, the Landlord Has Obligations A landlord has obligations for upkeep on certain parts of the property, as well as legal duties which protect a tenant's legal rights. A consult with an attorney would be the best way to confirm the specific duties within any one landlord-tenant relationship. However, every tenant should be aware of some basics, such as: The landlord has a duty of upkeep and repair on common areas like shared hallways or landscaping. If the landlord does provide appliances, they need perform their intended function. Any repairs must be made in a timely manner, but realize that this provides a landlord time to review the damage and find professional help. The landlord is obligated to follow the eviction process, which includes giving the tenant notice of intent to file eviction before going to court. A landlord cannot simply lock out a tenant. A landlord must also continue to provide utilities if they are part of the rent paid. This applies even if you are late on rent or being evicted. They can only cut off the utilities if a court has evicted you, and you have reached the end of the eviction process.

Prepare Notice of Default Look at the Notice Clause in your lease. Many leases require no notice for monetary default and written notice with specific number of days notice for other breaches of the lease. Comply with all lease provisions for notice of default before filing ejectment action. If notice of default is sent for any reason, say “right to possession will be terminated,” rather than “lease will be terminated.” If you are terminating the lease, you lose the right to seek rental payments which might have been owing until end of term. Lease provisions including a forfeiture clause and a clause saying no notice will be given for non-payment of rent are enforceable. If lease has no forfeiture clause and no notice clause, GS 42-3 implies forfeiture ten days after demand for rent. Who Can Bring the Action Either the Landlord or his Agent may file a complaint for summary ejectment. If brought by an agent, the caption should read “_________________, Owner by Agent, _________________.” Name all adults living in the premises as defendants. The agent signing the complaint must have actual knowledge of the facts alleged in the complaint. The statute empowering the agent to bring the action for summary ejectment does not extend to claims for money damages, i.e. collection of rent. What are the Grounds for Summary Ejectment 1) Tenant holding over after the expiration of the lease; (2) Tenant doing or failing to do any act which breaches the lease and ends their rights in the property; or most often (3) when the Tenant has failed to pay rent. You cannot evict the tenant if you have accepted a partial payment of rent unless your lease says you can. You cannot evict the tenant for failure to pay water and sewer charges. You must apply payments to rent first. You cannot cut off a Tenant’s electricity even if they fail to pay those charges. You cannot evict a tenant because she is a victim of domestic violence, sexual assault or stalking. You cannot evict a tenant in retaliation for repair requests, good faith complaint to governmental agencies, good faith exercise of rights under the lease or under the law, participation in a tenant’s rights organization, or the government’s issuance of a complaint concerning the premises. Most leases provide for either failure to pay rent or other breaches of the lease. If the lease only expressly provides for eviction for non-payment of rent, you cannot evict a tenant for other non-monetary. For example, if your lease requires the tenant to allow you access to inspect and make repairs but the lease does not broadly allow eviction for other breaches of the lease, you may not evict for their failure to provide access. Completing and Filing the Summary Ejectment Complaint Form Read the back of the Summary Ejectment Complaint form (AOC-CVM-201) available from the Clerk of Court or from the Administrative Office of the Courts (AOC) website at www.nccourts.org/documents/forms and complete blocks as appropriate. As long as your lease contains a forfeiture clause, you should usually check the third block of paragraph 3 (“The defendant breached a condition of the lease described below for which re-entry is specified”). Checking the third block may enable you to obtain judgment without further proof if Tenant fails to appear in court. Do not check block 1 which says, “The Defendant failed to pay the rent due on the above date and the plaintiff made demand for the rent and waited the ten day grace period before filing the complaint.” Block 1 applies to landlords who do not have a forfeiture clause and allows the Tenant to avoid eviction by tendering in cash the rent and court costs before judgment. The Clerk will schedule a hearing no more than seven business days later. The Small Claims filing fee is now $96.00. The Sheriff’s service fee is $30.00 per defendant. Provide a stamped envelope addressed to each tenant for the Sheriff’s use. Check Tenant's Military Status Check the military status of all Tenants via https://www.dmdc.osd.mil and complete the military status affidavit. (AOC-G-250, Rev 8/17). The federal Service Member's Civil Relief Act protects servicemembers from civil actions when they are away on military service and requires all civil plaintiffs to complete an affidavit regarding the civil defendant's status. The form is available from the Clerk of Court or AOC website. If you do not have the date of birth or social security number you may prepare an affidavit describing facts supporting your belief the tenant is not in military service. If the tenant shows up the magistrate does not need the affidavit. If the tenant does not show up and you do not have a military status affidavit, the magistrate will not render judgment for you. Coming to Court Be on time. If you are not present when the magistrate calls your case it may be dismissed. Identify yourself as Landlord or as Agent for the owner. Tell the magistrate you have personal knowledge of the facts and are familiar with the business records which will be introduced into evidence. Magistrate will dismiss a case if the only witness for the Landlord is merely a relative or neighbor of a “Mom and Pop” Landlord or an apartment complex’s maintenance man who knows nothing about the rent issues. Bring a copy of the lease and any notice of default or notice to vacate and show it to the Magistrate, especially the clause which says Landlord has right to terminate lease. While oral notice to default is sufficient unless the lease requires written notice, a written notice makes better evidence. State the amount of monthly rent and the total amount of rent and late fees in arrears. If you have a claim for damage to the property, bring photos of the damage and the expenses incurred in repairing it or at least the contractor’s estimate. It is helpful to show the damage did not exist at beginning of lease by the move in checklist, that all requested repairs were made, and that you are only charging for damages. which are not routine wear and tear. You as the Landlord/Agent present your evidence first. You may call the Tenant as a witness, especially if he/she is the only witness to a necessary fact. The Tenant has the right to cross examine you and any witnesses you call. The Tenant presents his/her evidence after you are finished. You have the right to cross examine the Tenant and any other witnesses he/she may call. Be polite not only to the Magistrate but to the Tenant and all witnesses. Do not interrupt the Tenant when he/she is testifying even if they are lying or bringing up irrelevant matters. Respond by clear factual questions on cross examination. Avoid raising your voice or being argumentative. Stick to the most important facts and avoid unimportant disputes. Ask Tenant to admit each allegation of the complaint, especially that some amount of rent and late fees is unpaid. Getting the Magistrate to find that a larger amount of arrears is undisputed will be helpful if the Tenant appeals the judgment as it may increase the initial appeal bond. Ask the Magistrate to note on the judgment that the certain amount of arrears is undisputed. Rules of evidence are only loosely enforced in small claims court, but you may object to hearsay, i.e. the tenant testifying to what someone said who is not in court. Entry of Judgment, Time for Appeal and Issuance of Writ of Possession if No Appeal The magistrate will render judgment on the same day unless the parties agree otherwise or the case is considered complex. Complex cases may include issues involving criminal activity, Section 8 housing, public housing, counterclaims or issues other than nonpayment of rent. Upon rendition of judgment by the Magistrate, either party has ten (10) days to appeal for a new trial in the District Court. The Tenant has the benefit of an automatic stay preventing execution on the judgment during those ten (10) days. If no appeal is filed after ten days, you may seek issuance of a Writ of Possession from the Clerk of Court. The Writ is obtained by paying the Clerk of Court a $25 fee and the County Sheriff a $30 fee per defendant. The Sheriff will send notice to you and the tenant when the lock out will be scheduled, by statute within five days of the Sheriff's receipt of the Writ, as a rule of thumb the lock out is usually about a week after the clerk issues the writ.