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Summary Ejectment In North Carolina

Joseph Davies

The question we get asked more often than any other from landlords is, “My tenant is not paying rent – can I change the locks?”  The answer is a resounding “NO!”  This is particularly true with residential tenants, but is also the safest course in commercial leases.  Instead of resorting to “self-help” by changing the locks, the process for evicting a tenant in North Carolina is called summary ejectment, and is handled in small claims court.

First, there must be some valid reason for evicting the tenant such as:

  • The lease is over and tenant will not leave;
  • The tenant has not paid rent and has been given ten days to pay;
  • The tenant has breached some other aspect of the lease for which eviction is allowed under the terms of the lease; or
  • The tenant has engaged in certain criminal activity which allows for eviction.

Once the decision is made to pursue the eviction, the landlord files a “Complaint in Summary Ejectment” in small claims court.  If past due rent is owed and is less than $5,000, you can also seek that amount in small claims court.  Notice of the complaint is served by the sheriff by posting it at the premises and, if money is being sought, by serving it on the defendant personally.  The small claims judge (called a magistrate) will hold a hearing and determine whether the landlord is entitled to possession of the premises.

If the court finds that the landlord is entitled to possession, the tenant has ten days to file an appeal to the district court.  In order to file that appeal, the tenant must post a bond in the amount of the past-due rent as determined by the magistrate, as well as promise to continue paying rent as it comes due.  If there is no timely appeal, then the clerk of court may issue a Writ of Possession, which allows the sheriff to actually evict the tenant.

Because eviction can be a harsh result, both North Carolina law and the court system are generally inclined to rule in favor of tenants, particularly residential tenants.  Therefore, a magistrate will not order an eviction unless the landlord has properly followed the requirements of the summary ejectment statute, including proper notice to the tenant.  Therefore, if you are the landlord, it is critical to follow those requirements exactly and, if you are the tenant, you may be able to buy some time if the landlord has missed something.

The bottom line, however, is that in North Carolina landlords should always use the summary ejectment process for eviction of tenants – if you have any questions concerning the summary ejectment process, please feel free to contact us.

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About Joe Davies

Joe’s practice focuses on construction law, landlord-tenant disputes, business and shareholder disputes, and employment matters. Joe practices throughout the state trial and appellate courts of North Carolina, and is also admitted to each of the Federal District Courts in North Carolina. Joe is also admitted in Pennsylvania and the District of Columbia, although he is currently inactive in both jurisdictions.