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As in alll states, North Carolina does not permit landlords to use
"self-help" eviction. That is, a landlord cannot
change the locks or otherwise impede the tenant's ability
to enter the premises (except in order to maintain or
repair the premises), even if the tenant fails to pay the
rent.
In order to evict the tenant, the landlord must
obtain a court order through a process called
"summary ejectment". (N.C. Gen. Stat. §§ 42-26
to 36.2)
The landlord cannot evict a tenant in retaliation for
certain protected actions. These protected actions
include:
(1) Complaints made to the landlord, his
employee, or his agent about conditions or defects in the
premises that the landlord is obligated to repair; (2)
complaints to a government agency about a landlord's
alleged violation of any health or safety laws;
(3)
attempts to exercise rights described in the lease in
state or federal law; and
(4) attempts to become involved
with any tenants' rights groups. If the tenant has
undertaken any of these actions in good faith and in the
six months before the eviction proceeding, the tenant
should bring this to the court's attention. (N.C. Gen.
Stat. §§ 42-36.1 to 36.3)
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If a landlord wants to evict a tenant who will
not leave voluntarily, then he must file a
Magistrate’s Summons and Complaint in Summary
Ejectment in Small Claims (Magistrate’s) Court.
The tenant must be served with the Summons and
Complaint by the Sheriff’s Office, either
personally or by posting. The Summons will
state the date, time, and place for the court
hearing. Small Claims Court hearings are
informal, but both parties may have an attorney,
present evidence, and subpoena witnesses. |
The tenant may have defenses to the eviction action
depending upon which basis for eviction the landlord
sets out in the Complaint. The tenant may also
file written counterclaims against the landlord.
Examples of such counterclaims include: 1) a
rent abatement for the landlord’s failure to make
repairs for which he was responsible, after having
been properly notified by the tenant; and 2) money
damages if the landlord attempted to evict the
tenant illegally and damaged him in some way.
Either party has ten days in which to appeal the
magistrate’s decision to District Court for a new
trial. During this ten-day appeal period, the
landlord cannot make the tenant move. If
the tenant properly appeals the judgment to District
Court and pays the rent when due to the Clerk of
Superior Court, then he can retain possession of the
premises. The tenant may also be required to
pay any undisputed past-due rent to the Clerk of
Court, unless he files the appeal as an indigent.
If the eviction is based upon nonpayment of rent and
the judgment is entered more than five working days
before the day when the next rent payment is due
under the lease, then the tenant must also pay the
pro-rated rent for that time period to stay
execution of the magistrate’s judgment for
possession pending trial.
If the tenant does not appeal the magistrate’s
judgment within ten days or loses on appeal, then
the landlord may evict the tenant by obtaining a
Writ of Possession of Real Property issued by the
Clerk of Court. The writ directs the Sheriff
to physically remove the tenant and his personal
property from the premises. The Sheriff, not
the landlord, is the only one who can remove the
tenant and/or his personal property from the rental
premises. The landlord cannot force the tenant
to move at any stage of the eviction process.
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