An eviction usually begins when a tenant is served with a notice for nonpayment of rent or an unconditional quit notice for violating the lease. Often a tenant will move out after receiving such notice. Sometimes, however, a tenant will attempt to fight the eviction by launching a defense argument.
State law in North Carolina sets out specific rules landlords must follow to evict a tenant. (See How to Evict a Tenant in North Carolina for details.) If a landlord fails to adhere to the law, a tenant may claim that the eviction was not justified or was done in some illegal manner. A tenant’s well-crafted defense can prevent an eviction and, in some cases, secure money damages for the tenant. This article covers some of the most common legal defenses tenants may use to stop or delay an eviction in North Carolina.
Tenant Defenses for Fighting an Eviction in North Carolina
There are four main reasons a landlord can evict a tenant in North Carolina: 1) nonpayment of rent, 2) tenant remaining on premises after the termination of the lease (“hold-over tenant”), 3) tenant breaching one or more terms of the lease agreement, and 4) drug trafficking or other criminal activity.
The defenses available to tenants depend on the reason for the eviction. For example, retaliation, discrimination, and the use of “self-help” methods constitute defenses that are available in most types of evictions. Other defenses may be limited. For example, a tenant may be able to claim that a landlord did not serve proper notice in fighting an eviction for nonpayment of rent or holding over, but this defense may not be available for a lease violation. Waiver by the landlord, on the other hand, may be used as a defense in an eviction for violation of a condition of the lease.
Here are some of the most common defenses, or legal grounds, tenants may use to fight an eviction in North Carolina
Landlord Evicted Tenant Using “Self-Help” Eviction Procedures
North Carolina law states that it is against public policy to evict a tenant by any means other than court proceedings. (N.C. Gen. Stat. § 42-25.6.) Any attempt to evict a tenant without a court order constitutes a self-eviction or a “self-help” eviction. (N.C. Gen. Stat. § 42-25.9(a).) Some common “self-help” methods include turning off utilities, changing the locks, or simply insisting that the tenant leave the premises. (See the Nolo article Illegal Eviction Procedures in North Carolina for more information.) A tenant subjected to “self-help” methods will have a defense to eviction. However, the eviction will only be stayed until the landlord commences a lawful action.
Landlord Did Not Follow Proper Eviction Procedures
Even if the landlord does utilize the court system, an eviction will not be lawful unless all of the legal procedures are meticulously followed. The most common blunders include a landlord’s failure to give proper notice and starting the eviction proceedings too early. If notice is due, a landlord must wait for the elapse of the appropriate time before filing a complaint. Another procedural mistake is improper service of the summons and the complaint. A tenant’s defense based on a landlord’s failure to adhere to certain procedural requirements will stay the eviction until the correct procedures are employed.
Tender of Rent by the Tenant
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. (N.C. Gen. Stat.§ 42-33.) 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. (See Tucker v. Arrowood, 211 N.C. 118, 189 S.E. 180 (1937).)
Waiver by the Landlord
Acceptance of rent from a holdover tenant or a tenant who violated a condition of the lease may constitute a waiver. Acceptance of full or partial payment of rent after learning of a lease violation constitutes a waiver. (See Winder v. Martin, 183 N.C. 410, 11 S.E. 708 (1922).) A landlord is precluded from evicting a tenant on the basis of a violation he/she knew existed before accepting payment.
Similarly, if the lease allows renewal with notice to the landlord, payment and acceptance of rent constitutes such notice and creates a new tenancy. (See Kearney v. Hare, 265 N.C. 570, 144 S.E. 2d 636 (1965).) The law presumes that this newly-created tenancy is based on the same terms (including duration and payment schedules) as the original agreement. For example, if the original agreement was a twelve-month lease, after acceptance of payment, the landlord and the tenant could remain contractually bound for another year. Most leases, however, include clauses that convert a year-to-year tenancy to a month-to-month tenancy after the expiration of the first year.If such a provision exists, the landlord will simply have to wait until the end of the month to evict the holdover tenant.
North Carolina law protects a tenant’s right to live in “decent, safe, and sanitary housing.” (N.C. Gen. Stat. § 42-37.1.) A tenant has the right to complain of unsafe, unsanitary, or indecent conditions to the landlord, landlord’s agent, or a government agency. Evicting a tenant for making such complaints is called a “retaliatory eviction” and is a defense to eviction. If the court concludes that a tenant is being evicted in retaliation, the eviction will be stayed. (N.C. Gen. Stat. § 42-37.2.) See the Nolo article North Carolina State Laws Prohibiting Landlord Retaliation.
Breach of Warranty of Habitability by Landlord
In addition to the express promises contained in an executed lease agreement, a landlord also makes implied promises. A landlord implicitly promises to make repairs and do whatever is necessary to provide the tenant with fit premises.(N.C. Gen. Stat. § 42-42(a).) This is called the “implied warranty of habitability.” Fit premises are those that are generally kept in safe and sanitary conditions and conform to applicable housing and building codes. (N.C. Gen. Stat. § 42-42(a).) Mold growth, rodent infestation, and lack of working heating or cooling systems are examples of the more egregious violations of the implied warranty of habitability. A violation need not be so severe, however. A broken front door lock also violates the law.
Even if such conditions exist, however, a tenant in North Carolina does not have the right to unilaterally withhold rent payments without a court order. (N.C. Gen. Stat. § 42-44(c).) For more information, see the Nolo articles Tenant Rights to a Livable Place and North Carolina Tenant Rights to Withhold Rent or "Repair and Deduct."
Successfully proving a breach of the implied warranty of habitability by the landlord will stay the eviction. The judge will give the landlord a timeline by which all necessary repairs must be made while the tenant will likely continue making rent payments proportionally reduced by the severity of the condition.
Keep in mind, however, that a landlord cannot repair that which he does not know is broken. At the eviction hearing, the tenant will therefore have to provide evidence of notice or landlord’s knowledge of the condition. A written complaint addressed to the landlord is the best way to prove such notice. Transcripts of text messages or emails or a witness attesting to verbal notice are also acceptable.
A landlord who attempts to evict a tenant because of race, color, national origin, religion, familial status, sex, or disability/handicap is violating both the North Carolina State Fair Housing Act and the federal Fair Housing Act. In this situation, a tenant will not only have an eviction defense, but also grounds for a formal complaint. If you believe that you are being discriminated against by your landlord, contact the North Carolina Human Resources Commission at (919) 807-4420. Also, see the Nolo article Housing Discrimination Prohibited by State and Local Law for more on laws prohibiting discrimination against tenants.
Caution to Tenants
Since the eviction process is time-consuming and costly, most likely, your landlord does not want to evict you. Don’t ignore phone calls and be hostile.Instead, if you are satisfied with your living conditions, call your landlord and make an appealing offer. Perhaps your landlord is willing to drop the lawsuit if you bring your account current or remedy a violation. Many communities have free or low-cost mediation services that handle landlord-tenant disputes. Local resources are available through the website mediate.com and the American Arbitration Association. The mediation faqs on the Nolo site provide more information on the subject.
Resources on North Carolina Landlord-Tenant Law
For an overview of landlord-tenant law and eviction rules and procedures, see the Renting and Evictions section of LawHelpNC.org, the Legal Aid of North Carolina (LANC) Landlord-Tenant brochure, and HUD.gov. To read the law itself, see Chapter 42: Landlord and Tenant of the North Carolina General Statutes. To find legal help to assist with an eviction, check out the North Carolina landlord-tenant attorneys in Nolo’s Lawyer Directory. For a detailed discussion about a landlord’s duty to make repairs, see North Carolina Attorney General's Landlord/Tenant Handbook.
When to Hire an Experienced Tenants’ Lawyer
If you have a complicated eviction case or defense or the landlord has already retained a lawyer, you should probably also contact a lawyer. A lawyer can handle the whole case or give you advice on how to proceed. A lawyer can also let you know how likely you are to win your case. You may especially want to hire an attorney if you are confident of your case and your lease or rental agreement entitles you to attorney fees if you win in court.
For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Attorney.
If you qualify for legal aid you may be able to get some help. See Legal Aid of North Carolina for more information on resources available your area.