Like all states, North Carolina does not allow aggrieved landlords to resort to "self-help" eviction remedies. That means that a landlord may not simply change the locks or otherwise prevent a tenant from entering the premises in question. This is true even if a tenant has not paid the rent. North Carolina law requires landlords to follow a multi-step legal process in order to evict tenants for non-payment of rent. If you are in jeopardy of eviction, be sure to consult with an attorney in your jurisdiction.
In order to evict a tenant, a landlord must first obtain a court order authorizing him to do so. The process, called "summary ejectment," is governed by North Carolina General Statutes Sections 42-3 through 36.2. If a tenant refuses to vacate the premises voluntarily, the landlord must file a summons and complaint in Magistrate's, or Small Claims Court. The tenant must be served with these documents by the sheriff's office, either personally or by posting them on the tenant's front door. The summons will give the date, time and place of the court proceedings. Small Claims Court hearings are generally informal, although both the landlord and the tenant may be represented by an attorney, will have the opportunity to present evidence, and can subpoena witnesses.
If the landlord has set out non-payment of rent as the basis for the complaint, the tenant may have a defense to the eviction action. For example, if the tenant has notified the landlord in writing of a condition in the premises that fails to meet local building and housing codes, like a leaky roof, and the landlord has failed to remedy the problem, the tenant may qualify for rent abatement. The tenant also has the option of filing written counterclaims against the landlord, such as seeking monetary damages for any detriment sustained as a result of the landlord attempting to evict him illegally.
Both parties have10 days in which to file an appeal of the magistrate's decision. A new hearing, this time in District Court, decides the matter. The landlord cannot legally force the tenant to move during this 10-day period. Furthermore, if the tenant has properly appealed the judgment to District Court and then pays the rent, including any past due, by the date due to the clerk of the court as ordered by the magistrate, he can lawfully retain possession of the premises pending trial. Depending on when the judgment was entered, the tenant may also need to pay some amount of pro-rated rent as well.
Writ of Possession of Real Property
The landlord can obtain a Writ of Possession of Real Property if the tenant does not appeal the magistrate's decision within the 10 days allowed, or loses on appeal. Issued by the clerk of court, the writ authorizes the physical eviction of the tenant and his personal property. The landlord, however, is still not allowed to force the tenant to move, even after a writ has been issued. The sheriff is the only person legally empowered to remove the tenant and his property from the premises.
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