Table of Contents:
- North Carolina State Laws on Eviction of Tenants for Non-Payment of Rent
- What Are the Eviction Laws for Nonpayment of Rent in Texas?
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.
Texas Property Code
The Texas Property Code contains the state's eviction laws under Chapter 24, "Forcible Entry and Detainer." The chapter sets forth the required procedures to evict a tenant for a variety of reasons, including nonpayment of rent. The chapter also identifies the proper court for eviction as the justice court serving the precinct where the property is located. For nonpayment-of-rent complaints, section 24.053 allows the court to set an amount of back rent to be paid by the tenant upon judgment in the landlord's favor.
Rent Withholding in Texas
A tenant may decide to withhold rent if the landlord does not fix certain problems or poor living conditions on the property. Rent withholding may be viewed as nonpayment of rent for eviction purposes. Accordingly, the State Bar of Texas advises against rent withholding except under limited circumstances. The tenant may need to first conduct repairs and deduct the costs from the next month's rent, with proper notice to the landlord, as permitted by Texas law. The tenant may also need to obtain a court order for rent withholding. Without these circumstances, the tenant may incur court-ordered penalties for rent withholding if the landlord takes legal action. These consequences might include monetary penalties, the possibility of eviction based on nonpayment and responsibility for the landlord's legal fees.
Landlord's Right to Pursue Eviction
When a tenant fails to pay rent, the landlord has a right to start the eviction process, also known as a "forcible entry and detainer" (FED) lawsuit. The landlord must first post a written notice asking the tenant to vacate the property. If the tenant does not move out within the specified time period, the landlord can file the complaint to start the FED lawsuit. The complaint must state the reason for eviction -- for example, nonpayment of rent. The tenant will receive a notice with a time and date for an eviction trial in a justice of the peace court. The parties may choose to hire lawyers or seek help from a legal-aid organization. Both parties present evidence at the trial and the court decides whether to issue a judgment for eviction. If the landlord's lawsuit succeeds, the tenant will need to move out unless both parties agree to payment of back rent allowing the tenant to remain on the property.
Tenant's Defenses to Eviction
When a landlord starts eviction proceedings after nonpayment of rent, the tenant has a right to present any relevant defenses allowed by Texas law. The Texas RioGrande Legal Aid organization warns, however, that the courts do not often look favorably on nonpayment defenses based on hardship -- these excuses include illness, job loss or unexpected expenses such as a broken-down car. The justice of the peace will consider other procedural and substantive defenses to the eviction. Procedural defenses highlight the lack of proper steps required by the Texas Property Code, while substantive defenses focus on retaliation, discrimination and duplicity by the landlord.