Eviction is a process that allows a landlord to lawfully remove a tenant from the leased premises. There are four main reasons a landlord can evict a tenant in North Carolina:
Landlords must always adhere to the law and follow specific steps to complete an eviction under North Carolina's landlord-tenant law. (N.C. Gen. Stat. § § 42-25.6 and following.) Even when an eviction is justified, it may be defendable, on various grounds—for example, a tenant may claim that the eviction is illegal because the landlord used “self-help” measures such as shutting off the utilities.
This article summarizes the eviction process in North Carolina. For details on common defenses a tenant may use in fighting an eviction, see the Nolo article Tenant Defenses to Eviction Notices in North Carolina.
In order to evict a tenant in North Carolina, the landlord must first serve the tenant with the appropriate termination notice. The type of notice depends on the reason for the termination.
If the reason the landlord wants to evict the tenant is due to nonpayment of rent, the landlord must generally give the tenant a ten-day “notice to quit” before starting the eviction process. (N.C. Gen. Stat. § 42-3.) The purpose of this notice is to demand payment and it is therefore colloquially called a notice to “quit or pay.” If the tenant does not pay rent within the ten days, the landlord can proceed to file eviction papers on the 11th day.
At the end of a lease term, a landlord and a tenant both have an option to renew the lease or rental agreement. A landlord who does not wish to renew the agreement is not obligated to do so. In that case, the tenant must surrender possession of the leased premises at the end of the lease. A “holdover tenant” is one who, without the consent of the landlord, remains in possession of the premises after the expiration of the lease. (N.C. Gen. Stat. § 42-26.)
Depending on the term of the lease, a landlord must provide one of the following termination notices before the end of the then-current lease:
(See N.C. Gen. Stat. § 42-14.)
When the lease expires, the landlord is not required to give the tenant any options. The above-listed termination notices, also called “unconditional notices to quit,” simply notify the tenant when the lease is due to expire and state a deadline by which the tenant must vacate the premises. If the tenant does not move out by the specified date, the landlord can proceed with the eviction without further notice.
Importantly, the landlord must not accept any payment after the expiration of the lease term and before filing a complaint. This includes partial payment. Doing so may create a new tenancy based on the same terms as the original lease or rental agreement. (See Kearney v. Hare, 265 N.C. 570, 144 S.E. 2d 636 (1965).)
A landlord has the legal right to evict a tenant who breaches or violates an explicit condition of the lease. Damaging the rental property, disturbing the neighbors, housing a pet if the lease or rental agreement prohibits pets, or bringing in an unauthorized tenant are all examples of common violations. Note that willful or intentional destruction of the leased premises could also result in a misdemeanor charge in North Carolina. (N.C. Gen. Stat. § 42-11.)
A landlord is not legally obligated to give a tenant an opportunity to cure a lease violation before commencing eviction proceedings. Unlike the evictions previously discussed, there are no minimum notice requirements. Unless the lease requires notice and an opportunity to cure, the landlord can file eviction papers upon learning of a violation.
Expedited eviction is available to landlords seeking to evict drug traffickers and other criminals in North Carolina.
Prior to filing eviction papers, a landlord must first terminate the tenancy using the notice requirements described above. After the landlord has served proper notice and the deadline to pay rent or vacate the premises has expired, the landlord may need to initiate court proceedings to expel the tenant from the premises.
The landlord will initiate court proceedings by filing eviction papers in the appropriate small claims court or district court. The landlord should file the papers in the same county where the rental property is located. Small claims courts in North Carolina are appropriate venues for actions in which the damages sought do not exceed $10,000. This amount may be different in some counties. A landlord who claims that a tenant owes more than $10,000 should file the eviction papers in district court.
A complaint is a legal document that sets out the reasons one party seeks legal action against another. A clerk will provide a standard form titled “complaint in summary ejectment.” When filling out the complaint, the landlord must list as “defendants” all tenants whose names appear on the lease or rental agreement. Failing to do may prolong the eviction process.
A summons is a legal document that notifies a defendant that an action has been commenced. The summons will state a date and time on which the tenant should appear at a specified location to answer the complaint (a “hearing date”).
Once the landlord files the eviction papers, the tenant is served with the summons and a copy of the complaint. Usually, the county sheriff will personally serve the tenant at his or her home. Upon receiving these papers, the tenant may vacate the premises. Alternatively, the tenant may choose to fight the eviction by presenting defenses at the eviction hearing.
The tenant is not required to be present at the eviction hearing; however, it is advisable to do so. Failing to appear will guarantee an automatic win for the landlord—a “default judgment.” Even worse, if the landlord is seeking money damages, a money judgment may be entered against the tenant. These results may negatively impact the tenant's rental and credit history.
Tenants should check the complaint. The tenant's presence at the eviction hearing is not necessary if: 1) the landlord is merely seeking possession of the leased premises (and not claiming that the tenant owes money), and 2) the tenant is willing to move out and does not wish to fight the eviction.
If the tenant chooses to fight the eviction, the tenant must appear at the eviction hearing. At the hearing, the landlord will speak first and present his or her case to the judge or magistrate. Most landlords lose eviction hearings because they lack proper documentation. Thus, a landlord should at least bring the following two items to the eviction hearing:
Next, the tenant will have an opportunity to speak. If the tenant has defenses to the eviction, such as improper notice, “self-help” methods, or retaliatory eviction, the tenant should present those defenses at this time. The tenant may use any evidence in support of his or her case. The tenant may therefore bring the following to the court:
This list is not exclusive. The tenant should bring whatever evidence supports his or her case.
Once the landlord and the tenant finish presenting their cases, the judge will consider the evidence. The judge will determine whether the landlord is entitled to possession of the premises and will likely render a decision on the spot. If the landlord wins the eviction hearing, a judgment will be entered in his or her favor. The tenant will then have ten days to appeal the decision. Note that the tenant may be ordered to make bond payments to the court while an appeal is in progress. If the tenant fails to make bond payments, the landlord can cancel the appeal. If the tenant chooses not to appeal or loses the appeal, the tenant must vacate the premises.
After winning the eviction hearing or appeal, the landlord will file for a “writ of possession,” which allows the landlord to forcibly remove the tenant from the premises. The landlord must wait ten days after the initial judgment before filing for a writ of possession. The landlord may file for a writ of possession immediately after winning an appeal. If the tenant remains on the property, the county sheriff will accompany the landlord and padlock the premises within seven days of receiving the writ of possession.
The landlord will also have ten days to appeal an unfavorable decision. If the tenant wins the eviction hearing (or the appeal, if one is sought), the eviction will be stayed and the tenant will be able to remain on the premises.
For an overview of landlord-tenant law and eviction rules and procedures, see the Renting and Evictions section of LawHelpNC.org, 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.