- What is eviction?
Eviction is a type of court case. In North Carolina, an eviction case is called “summary ejectment.” Landlords can file to legally remove a tenant rented property if the tenant has failed to pay rent, violated the lease agreement, or if other conditions apply.
- Can a landlord evict a tenant without going to court?
Landlords cannot force tenants out of their homes without going to court, for instance, by changing the locks, turning off utilities or removing the doors. Landlords may send tenants “eviction notices” warning tenants that they plan to file for eviction unless the tenant moves out first. In general, landlords are not required to send an eviction notice before filing an eviction. An eviction notice allows the tenant to choose to voluntarily move out to avoid the court process.
- What is a landlord required to do to get an eviction?
The landlord must file a “Complaint in Summary Ejectment” with the clerk of court. In court, the landlord must prove that grounds for eviction exist. Landlords can evict tenants under the following circumstances:
- The tenant did not pay rent, the landlord made a demand for rent and waited 10 days, but the tenant still has not paid the rent.
- The lease has ended, but the tenant has not moved out.
- The tenant has violated a condition of the lease allowing for eviction. This may include failure to pay rent if the lease includes appropriate language.
- Criminal activity has occurred for which the tenant can be held responsible.
- What if I want to get someone out of my home, but we never signed a lease?
Leases can be written or oral. However, a person allowed to live in someone else’s home without any agreement to pay rent or become a tenant is a guest. The eviction process is intended for tenants, and also gives tenants certain rights, including written notice of the claims against them and the opportunity for a hearing in which they can present a defense. Guests do not have these rights, and guests who refuse to leave the property may be removed either by the police or through a trespass warrant issued by a magistrate.
- Can I be evicted if I was unable to pay the rent for a good reason?
Yes. Failing to pay rent is grounds for eviction even if it is not your fault that you were unable to pay.
- Will evictions show up on my record?
Evictions are not criminal and will not show up in a criminal record. However, evictions are public record, which may appear in credit reports or affect the tenant’s ability to qualify for another lease.
- What if I live in public housing or have a Section 8 voucher?
Tenants who live in public housing or receive subsidized housing vouchers have more rights than tenants renting from private landlords without assistance. You should seek legal assistance if you are in public housing or have a housing voucher and are being evicted, because an eviction could affect your right to receive further housing assistance.
- What if I own a mobile home and rent a lot?
When a landlord rents a lot to a mobile home owner and wants to end the lease, the landlord must give 60 days’ notice. However, if the tenant fails to pay rent or breaches the lease, the landlord can evict the tenant on the same timeline as any other tenant. Tenants who own their mobile homes are responsible for the cost of moving the mobile home. Local zoning regulations may also affect owners’ ability to move an old mobile home.
The Eviction Process
- What notice does a tenant get of the eviction?
The landlord must have the tenant “served” with the court paperwork, either by certified mail, return receipt requested, or by paying the sheriff to deliver the paperwork. If the landlord arranges to have the sheriff serve the tenant, the sheriff must first attempt to contact the tenant to serve him or her personally. If this fails, the sheriff can serve the tenant by posting the paperwork on the door of the property. This is proper notice even if the tenant does not actually see the paperwork. However, if the tenant is served only by posting and does not appear in court, the court cannot order the tenant to pay any money, including past due rent, to the landlord.
- Who decides eviction cases?
Eviction cases are typically handled in small claims court, where they are decided by a magistrate. If either the landlord or the tenant appeals, the case will go to District Court, where there will be a new hearing before a judge.
- What happens in small claims court?
Small claims court can be held in a courtroom or in the magistrate’s office. The magistrate will typically have many cases scheduled for the same date and time. The magistrate will first call the names of everyone with a case scheduled to find out who is in court, and will then hear the cases one at a time.
Because the landlord filed the case, the magistrate will hear from the landlord first. The tenant has the right to ask questions of the landlord and any witnesses once they have finished testifying. The magistrate will then allow the tenant to testify, call witnesses and present any other evidence, such as pictures or documents. Both landlords and tenants may hire attorneys to represent them in small claims court if they wish, but they are not required to do so.
After hearing the case, the magistrate will make a decision. The magistrate will usually announce the decision in court, but will sign a written order later. You may receive a copy in the mail, or you can get a copy of the written order from the clerk of court.
- What if a party doesn’t go to small claims court?
Because eviction cases are civil, not criminal, no one is arrested for failure to appear in court. If a landlord fails to appear in small claims court, the case will be dismissed. If a tenant fails to appear, the magistrate will hear the case based only on the landlord’s version of the facts. The magistrate can order an eviction in the tenant’s absence, and can order the tenant to pay money in the tenant’s absence only if the tenant was not served by posting the notice on the property.
- Can I get a continuance in small claims court?
Magistrates may grant continuances for good cause, but may not give a continuance of more than five days unless the parties agree. You should be prepared to present your case on the first court date.
- How much time do I have to move if the magistrate evicts me?
Both parties have 10 days after the magistrate’s decision to appeal the case to District Court. The landlord cannot remove the tenant from the home until the appeal period has ended, whether or not the tenant appeals the case. Once the 10 days have passed, the landlord can return to court and ask the clerk for an order called a “Writ of Possession,” which allows the sheriffs to padlock the home. The sheriff’s office must then remove the tenant within 5 days. Local sheriffs’ departments will often notify tenants in advance of the date they intend to padlock the home.
- When the sheriffs come, will they throw my things out on the street?
No. However, the sheriffs will remove the tenants from the home and the landlord will padlock the doors or change the locks. This means that there could be a delay of hours or days before you are able to go back inside to get anything that you have left in the home.
- How much time do I have to get my things out after the eviction?
Depending on the value of your belongings left in the home, you have 5 to 7 days after the home is padlocked to arrange with the landlord a time to remove your belongings. Landlords are only required to allow tenants one visit to the home to collect all of the property. If you leave property worth a total of $500 or less in the home, you have 5 days to retrieve it; if it is worth more than $500, you have 7 days. If you have not yet arranged to move your things in this time period, the landlord can dispose of them.
- What happens when an eviction case is appealed?
The case is scheduled for a new trial before a District Court judge in the same county. Both the landlord and tenant will have a new opportunity to testify and present evidence and witnesses, and the judge will make a new decision about whether the landlord has proven grounds to evict the tenant.
- How can I appeal my eviction case?
Either a landlord or a tenant can appeal an eviction decision from small claims court to District Court by filing a Notice of Appeal with the clerk of court. Many tenants also file a Petition to Appeal as an Indigent and a Bond to Stay Execution (see the next two questions).
- Do I have to pay to appeal?
In general, in order to appeal, a tenant must pay to the clerk of court the court costs and any past due rent ordered by the magistrate. Tenants who are unable to pay can ask to be found “indigent,” which means they are not required to pay the court costs or past due rent while the case is on appeal. However, all tenants, including indigent tenants, must pay rent as it comes due to the clerk of court during the appeal (see next question). Anyone receiving public assistance through the Supplemental Nutrition Assistance Program (SNAP or food stamps), Temporary Assistance to Needy Families (TANF or welfare) or Supplemental Security Income (SSI) is considered unable to pay. You can find the indigency form here. This should be filed with the Notice of Appeal.
- Can I stay in the home while my case is on appeal?
Yes, but all tenants, including indigent tenants, must pay their rent to the clerk of court during the appeal if they wish to stay in the property. This is called “posting a bond.” In order to prevent eviction during the appeal and to pay rent to the clerk, the tenant must file a “Bond to Stay Execution” with the Notice of Appeal. Tenants who wish to stay in the property during the appeal must pay the prorated rent from the date of the magistrate’s decision and continue to pay the rent to the clerk as it comes due. A tenant who fails to pay rent during this time can be evicted before a judge hears the appeal. Tenants who are not indigent must also pay to the clerk any undisputed amount owed to the landlord.
- What are the rules for return of security deposits?
A landlord may keep a tenant’s security deposit to cover unpaid bills such as rent, damage to the property, court costs charged to the tenant in an eviction case, costs due to the tenant’s breach of the lease, or the cost of removing and storing the tenant’s property after eviction. In order to withhold part or all of a security deposit, the landlord is required to send the tenant an initial itemized bill within 30 days and a final bill within 60 days, explaining what the deposit is being used for. The landlord can only keep the amount needed to cover actual costs. If the tenant’s forwarding address is unknown, the landlord is not required to provide an accounting but must hold any remaining money for the tenant for at least six months.
- Can I represent myself in my eviction case?
Yes. Many people, including both landlords and tenants, represent themselves in small claims court. Self-representation is less common if the case is appealed to District Court, since this is the last opportunity for a trial in the case. If you choose to represent yourself in either court, you will be held to the same rules of evidence and procedure as a licensed attorney. Court officials, such as judges and clerks of court, cannot give you legal advice about your rights and obligations, possible claims or defenses, or the likely outcome of your case.
- Can I get free legal assistance with my landlord/tenant case?
Legal Aid of North Carolina is a statewide nonprofit organization that represents some tenants in their housing cases. You can apply for Legal Aid representation by calling 1-866-219-5262 or applying online.
- How can I file a complaint against a landlord for discriminating against me?
You can learn more about your rights regarding housing discrimination and file a complaint here.