quick NC eviction filing primer

5 Replies | Raleigh, North Carolina

For NC landlords/property...

The cost for filing a summary ejectment is $96 (to clerk of court) and sheriff service per tenant is $30. Generally, you can get a court date within 10 days of filing. So if you have a "standard" NC lease with 'notice' (item #2 on the top of page 2 of the standard lease) you could file, like we did, on 11/7/16 (Monday) with the tenant getting notice the next day or day after. Court in our case was 11/18 (Friday.) If you win, then the judge will tell the tenant (if present) he/she has 10 days to pay or get out. If the tenant is not out in 10 days, then plaintiff (landlord) goes back to the courthouse and files a writ of possession. You pay $30 to the clerk of court, then walk over to the sheriff's office (across S. Salsbury street if in Wake county) and pay $25 per defendent to schedule the lockout. You give the sheriff's office your phone number and the sheriff will call you to perform the lockout. This process generally takes 5 business days per state law.

On the lockout day, worst case, the tenant is still there. The sheriff knocks on the door and ejects the tenant(s) and "clears" the property. He waits for you to do your work, so bring a power screwdriver and replacement hardware for ALL doors. Sheriff will post notices that the permise is in possession of the landlord while you change the locks. Now (worst case) the tenant has 10 days to get their crap out.

So what are we up to? The best worst case scenario is after the filing day, 10+10+1+5+10. Like Dawn Brenengen said in another post. The reality is most tenants (like in our 11/18 case) will move out just before court or just after court. Also the worst case is rarely the 36 day absolute minimum because 2/7 of days are weekends and there are holidays... and people are not always proceeding with the process on the first day available.

Don't forget your affidavit when you go to court. And in Wake county bring your lease and recent tenant ledger since you may not get Judge F.....y who generally doesn't ask for it. And put your desire for possession AND court costs in the Description part of your complaint. If you have the new lease, put your 5% court appearance fee in the complaint or it won't attach to the judgement, at least for judges in Wake county small claims.

There are other filing details... like make 5 copies of the summary ejectment and magistrate summons forms, bring a stamped envelope, verify if your county accepts checks or not (in Wake, you need to be on the "check accepted" list)... but you want to get the details right to avoid having your case continued or, worse, dismissed.

I thought you have to give the tenant 10 days to pay after they are late.  Can you tell me where to find more info about how many days you have to give them?  We have a tenant that didn't pay.  We gave them a 10 day notice to pay or quit.  Was that wrong?  We are new to this and have been reading and studying the landlord tenant act but everything is so gray.

Originally posted by @Sara Hopson :

I thought you have to give the tenant 10 days to pay after they are late.  Can you tell me where to find more info about how many days you have to give them?  We have a tenant that didn't pay.  We gave them a 10 day notice to pay or quit.  Was that wrong?  We are new to this and have been reading and studying the landlord tenant act but everything is so gray.

The statutory details are in NCGS Section 42-46, but your lease should spell out all the terms related to default. Lots of managers file on the 6th or 7th, just look at the size of the dockets when you go to the courthouse. NCGS 42-46(a) says: 

In all residential rental agreements in which a definite time for the payment of the rent is fixed, the parties may agree to a late fee not inconsistent with the provisions of this subsection, to be chargeable only if any rental payment is five days or more late....

Well, the above is the method used in the state 'standard' 410-T. This form explicitly states "Tenant shall pay the Rent, without notice, demand or deduction, to Landlord or as Landlord directs." The emphasis in bold is mine. Now if you don't have wording like that in your lease, or your lease is a verbal lease (which amazingly is still in practice) then you'll need to look at NCGS Section 42-3, entitled Term forfeited for nonpayment of rent. In this section, you'll see the following: 

"In all verbal or written leases of real property of any kind in which is fixed a definite time for the payment of the rent reserved therein, there shall be implied a forfeiture of the term upon failure to pay the rent within 10 days after a demand is made by the lessor or his agent on said lessee for all past-due rent..." The emphasis in bold is mine.

I think the 10 days you inquire about might be via the above 42-3, which applies to verbal or what I'd consider poorly drafted leases. 

Giving the tenant more time (an extra 10 days) in not inconsistent with law, but does cause delay. BTW, every attorney and judge understands leases using 410-T and that's primarily why I use it. Just get the newest version (your attorney can help with this) that has wording to reflect state law changes regarding acceptance of partial payments. 

Disclaimer: This post is my opinion and I am not a lawyer. Always best to get competent professional advice n your particular lease/circumstance.