A lease or rental agreement imposes a duty on a tenant to make exact and timely rent payments. Paying rent is the fundamental obligation of any tenant, and when a tenant fails to make rent payments, a landlord may begin eviction proceedings. However, the landlord must meticulously follow the law before a tenant can be expelled from the leased premises.
This article focuses on the timing and the contents of a notice for nonpayment of rent. For details on how to evict a tenant in North Carolina, see the Nolo article How to Evict a Tenant in North Carolina. For a related topic, see Tenant Defenses to Eviction Notices in North Carolina.
Providing proper notice to a tenant is one of the most important steps in a lawful eviction. In fact, most eviction blunders occur when a landlord fails to give timely notice or files an eviction complaint too soon. Failing to provide lawful notice will likely prolong the eviction process and may result in a tenant remaining on the leased premises longer than necessary.
The default rule in North Carolina is that a landlord must give a tenant a 10-day notice to quit and provide "demand for payment of rent" (sometimes also called a "notice to quit") before a landlord can commence eviction proceedings for nonpayment of rent. (See N.C. Gen. Stat. § 42-3.) Unlike an unconditional notice to quit, which requests a tenant to immediately vacate the rental property, a demand for payment of rent gives a tenant the option to pay or leave.
The contents of a demand for payment of rent should include the following:
The manner in which a landlord presents a demand for payment of rent to the tenant will be dictated by the lease or rental agreement. For example, a lease may require that the notice be in writing and hand-delivered to the tenant. "Written notice," without further specification, will generally include emails and sometimes even text messages. Thus, if the rental agreement is very particular as to the method of delivery and format of the notice, those specifications will govern. Even if the rental agreement is vague, however, it is advisable to provide written notice and to deliver it to the tenant via US first class mail, return receipt requested. This precaution will ensure that the tenant is unable to later claim that he or she did not receive the notice.
Generally, a landlord may serve a demand for nonpayment of rent on the tenant the day after the date the rent is due. So, if the rent is due on the first of the month, a landlord may serve the notice on the second.
However, if the lease gives the tenant a grace period before the payment is considered late, the landlord must first wait for the expiration of the grace period before serving the demand. When a lease or rent agreement provides a grace period, such as three days, the rent will not be considered late until the contractually agreed upon period has passed. So, if rent is due on the first of the month, but the lease gives a three-day grace period before the rent is considered late, the landlord must wait until the fourth of the month to serve the demand for nonpayment of rent.
As discussed above, if the tenant does not pay rent in full and on the date that it is due, the landlord may begin eviction proceedings by serving a demand for nonpayment of rent on the tenant. That, however, is the default rule. Whether or not a landlord is required to make such a demand and give notice depends on whether the lease or rental agreement contains a forfeiture clause and a notice clause. A forfeiture clause is a clause that gives the landlord the right to terminate the lease or rental agreement earlier than it would have expired naturally. A notice clause outline the kind of notice the landlord must give the tenant before beginning eviction proceedings. Many leases combine these clauses into one clause where cancellation and notification are simultaneously addressed. Importantly, in North Carolina, forfeiture and notice clauses dictate the procedures a landlord must follow to evict a tenant.
Such clauses may have various functions. For example, a forfeiture clause may state that the landlord is not required to give the tenant any notice at all prior to filing eviction papers for nonpayment of rent. In that scenario, the tenant completely waives, or voluntarily relinquishes, the tenant's right to notice. This results in the landlord being able to file the eviction without notifying the tenant.
Alternatively, instead of serving as a complete waiver, a forfeiture and notice clause may outline new notice terms. For instance, the clauses may state that the landlord must first provide a five-day written notice and demand that the tenant pay the rent due or vacate the premises, as opposed to the ten-day notice required by N.C. Gen. Stat. § 42-3.
If a tenant fails to make an exact and timely rent payment, the procedure surrounding the eviction will depend on the lease. Below is a quick recap of the considerations that must be taken into account when figuring out how and when to file eviction papers for nonpayment of rent:
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 list of North Carolina landlord-tenant attorneys in Nolo's Lawyer Directory.