• As the Summary Ejectment Case Turns

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    It all began when two people fell in love…well, maybe not love, but they at least liked each other enough to enter into a landlord-tenant relationship. Like so many relationships, they did not live happily ever after, only here the breakup plays out in a summary ejectment case. With G.S. Ch. 7A, Art. 19 and Ch. 42 as our guides, let’s explore the life of a summary ejectment case from the beginning to the middle to the end and discover what twists and turns lie ahead from the clerk’s office to small claims court to district court, and even possibly the court of appeals. For illustration purposes, we will follow a case between two former lovers who find themselves at odds over whether the ex-girlfriend is a tenant in the house owned by the ex-boyfriend. Our example is loosely based on the facts in Bradley v. Tapia, 277 N.C. App. 385 (2021) (unpublished). Prior to this case, no North Carolina case law addressed this type of shared occupancy between romantic partners. Let’s call our couple “Nikki” and “Victor” as we explore the days of their lives.

    Landlord Meets Tenant and It’s Downhill from There.

    But first, let’s set the scene. In the beginning, a property owner (or perhaps a property manager acting on behalf of the owner) meets a tenant and makes an agreement to transfer exclusive possession of rental property to the tenant for a specified duration (e.g., month-to-month) in exchange for rent. See, e.g., In re Hawkins v. Wiseman, 191 N.C. App. 250 (2008) (unpublished).  Perhaps, the first few months go well, but then the relationship between the landlord and the tenant deteriorates or the tenancy runs its course. There are only four grounds for which a landlord can remove a tenant through the judicial process of summary ejectment, including:

    1. The failure of the tenant to pay rent. S. 42-3.
    2. The tenant holding over after the term has expired. S. 42-26(a)(1).
    3. The tenant’s breach of a lease condition for which forfeiture is specified. S. 42-26(a)(2).
    4. The tenant, resident, or guest’s criminal activity on the leased residential premises. S. 42-63.

    Since 1981, the North Carolina General Statutes have prohibited landlords from retaking possession of residential rental property by self-help eviction, which had long been the practice prior to the change in the law. G.S. 42-25.6. No longer can landlords move a residential tenants’ possessions to the curb and change the locks, nor can the landlord constructively evict a residential tenant by turning off the utilities. Additionally, landlords are prohibited from holding tenant’s personal property (distress and distraint) to force the tenant to pay rent. G.S. 42-25.7. The landlord can only evict a residential tenant through the judicial process of summary ejectment, and it begins when the landlord files a summary ejectment action in small claims.

    And Just Like That a Summary Ejectment Case is Born.

    A small claims action commences when the clerk issues the magistrate summons notifying the parties of the date and time of the hearing. Unlike a civil summons issued in civil actions generally, the magistrate summons does not require the defendant to file an answer denying the allegations. The defendant’s failure to an answer in small claims constitutes a general denial. G.S. 7A-218. It does not bar the defendant from raising affirmative defenses as it would in district court. There are no default judgments in small claims, so the plaintiff must prove all the elements of the case. G.S. 7A-222.

    In our example, Nikki and Victor finally call it quits after six years in an on-again-off-again romantic relationship. Nikki and Victor shared the Newman Ranch in Genoa City, North Carolina. The deed and deed of trust to the ranch are only in Victor’s name. When they moved in, they agreed that they would each pay half of the mortgage and utilities every month, and bank records show that most months they did split these expenses.

    In June 2023, Victor tells Nikki that he wants her to move out by July 31, 2023. Prior to moving into Newman Ranch, Victor and Nikki had purchased houses in other cities to renovate and resell. Nikki assumes she is Victor’s business partner in the ranch and that she does not have to move, so she ignores his request and continues to live in the ranch. Victor files for summary ejectment in the clerk’s office and on the complaint form he alleges the basis for the summary ejectment action: his tenant is holding over.

    You’ve Been Served.

    For the court to proceed with the case, the court must have personal jurisdiction over the defendant. G.S. 7A-217 sets out the ways by which the court may obtain jurisdiction over the defendant in a small claims matter:

    1. Service by the sheriff on the defendant or at the defendant’s dwelling or usual place of abode with a person of suitable age and discretion who resides there.
    2. Registered or certified mail, signature confirmation, or designated delivery service as provided in Rule 4 of the North Carolina Rules of Civil Procedure.
    3. Written acceptance of service or voluntary appearance by the defendant.
    4. In summary ejectment cases only, by the sheriff mailing a copy of the summons and complaint to the defendant and posting it in a conspicuous part of the property at issue. See S. 42-29.

    In summary ejectment cases, the sheriff is required to attempt personal service within five days of the issuance of the summons. Id. The complaint and summons must be served two days before the case is set for hearing, excluding legal holidays. Id. Since the turnaround time is so tight, the majority of summary ejectment cases are served by the sheriff mailing the summons and complaint and posting it on the property.

    Returning to our story, Victor leaves the clerk’s office and heads to the sheriff’s office. He pays the $30.00 fee and leaves the original summons and complaint and a copy for Nikki to be served. Nikki ignores the sheriff’s phone call requesting that she schedule an appointment to accept service. Deputy Rosco P. Coltrane puts a copy of the summons and complaint in the mail to Nikki and attempts to serve her at the Genoa City ranch. No one answers, so Deputy Coltrane tapes copies of the summons and complaint on the front door where Nikki could easily see it. See it she does, and she calls Victor demanding to know the meaning of this. To which he responds, “I’ll see you in court.”

    The Small Claims Hearing: It’s Not Divorce Court, But It Feels Like It.

    The summary ejectment hearing comes quickly after the filing of the complaint because G.S. 42-28 requires the clerk to set the hearing within seven days of the issuance of the summons, excluding weekends and legal holidays. As discussed above, there are no default judgments in small claims, so even if the defendant is not present, the plaintiff must still establish a prima facie case. The magistrate will likely render judgment at the close of the evidence because the statute limits the circumstances under which the magistrate may reserve judgment. G.S. 7A-222.

    If a losing party in small claims thinks the magistrate has committed a legal error, then he or she has the right to file an appeal for trial de novo in district court. G.S. 7A-228. In fact, an appeal is the aggrieved party’s only remedy for a legal error. The appeal is perfected either by announcing the appeal in open court, which the magistrate notes on the judgment, or by filing a notice of appeal in the office of the clerk and paying the costs for the appeal. A tenant has the option of staying the execution of a judgment for possession by paying into the court the amount of rent in arrears found by the magistrate and signing an undertaking to pay rent as it comes due pending the appeal. G.S. 42-34.

    Returning to our saga, Victor and Nikki have a hearing before Magistrate Judy. At the hearing, Victor explains that he and Nikki used to date and moved in together with each agreeing to pay one-half of the expenses. He shows bank records that indicate Nikki paid her portion most months, but she had missed a few payments. Nikki testifies that she is not Victor’s tenant. She says that, in addition to dating, she and Victor had a business partnership flipping houses. Even though she concedes the Genoa City house had not originally been purchased for that purpose, Nikki says they decided to flip it like they had done with a few other houses in different cities in the past. Victor denies any plans to flip the house for business, and unlike those other houses, they lived in this house and shared the expenses.

    Magistrate Judy finds the parties are in a landlord-tenant relationship and enters judgment for Victor. Magistrate Judy informs Nikki that she has 10 days from the day of the hearing to appeal his decision and that she can do so by filing a notice of appeal in the clerk’s office and paying the costs to appeal. Nikki storms out of the magistrate’s courtroom and down to the clerk’s office where she perfects her appeal.

    The District Court Trial: Once More, as if for the First Time.

    The appeal to the district court is for a trial de novo, a completely new trial. The judge may continue the case and order repleading by some or all of the parties or may try the action on stipulation or on the original pleadings. G.S. 7A-229. Either the appellant or the appellee may request a jury trial if they comply with the deadlines in the statute. G.S. 7A-230.

    The matter comes before the Honorable Judge Joseph Wapner in District Court. Neither Victor nor Nikki requested a jury trial, so Judge Wapner presides over a one-day bench trial. Like Magistrate Judy, Judge Wapner concludes that a landlord-tenant relationship exists between Victor and Nikki with respect to the Genoa City property. The trial court awards possession of the Genoa City property to Victor.

    Post-Judgment: After the Party is the After-Party.

    The story does not end there because Nikki has a right to appeal the district court’s decision to the North Carolina Court of Appeals. Although in this case there was not a money judgment, in cases where there is a money judgment, execution is automatically stayed until the time to appeal expires, here 30 days. G.S. 1A-1, Rule 62. However, the judgment for possession is not automatically stayed, and if Nikki wants to remain in the Genoa City property, she will have to post the rent bond and sign a new undertaking in the clerk’s office to pay the rent as it comes due. G.S. 42-34.1. If she fails to pay the rent within five business days of the day rent is due under the lease, Victor can apply to the clerk to issue the writ of possession for the sheriff to dispossess Nikki. Id.

    Spoiler Alert!

    In the real case, Bradley v. Tapia, 277 N.C.App. 385 (2021) (unpublished), the Court of Appeals affirmed the trial court’s award of summary ejectment to the plaintiff because they agreed with the conclusion that the legal relationship between the parties was that of landlord-tenant rather than an implied business partnership. Because the parties had the required landlord-tenant relationship and the plaintiff showed that the defendant failed to pay rent and did not vacate after being given notice, summary ejectment was appropriate. Even though the case does not have precedential value, it is persuasive and can give us insight into how the court of appeals may rule in the future.

    Much like the world of soap operas, summary ejectment cases involve twists and turns and lots of emotions. Landlords are upset because they are not being paid or because the tenant has violated the lease or failed to vacate the property. Tenants may be upset because of the condition of the property and the challenges of having to find somewhere new to live. Judicial officials and clerks who deal with these cases navigate the labyrinth of procedural rules from filing to (un)happily ever after.

    Melanie Crenshaw joined the School of Government in August 2022, working with magistrates in the area of civil law. Prior to joining the School, she worked as a magistrate in Cumberland County. Before serving as a magistrate, Crenshaw was in private practice in Greensboro, North Carolina, where she represented clients in a variety of matters related to family law. While in private practice, she also worked as an adjunct professor at the Elon University School of Law in the areas of family law and moot court. During law school, Crenshaw was the research clerk for the NC Pattern Jury Instruction Criminal Subcommittee and spent a summer as an intern in the Clerk’s Office of the North Carolina Supreme Court. Prior to attending law school, she was a high school french teacher in Fayetteville, North Carolina.

    Crenshaw received her JD summa cum laude from Elon University School of Law as a member of the charter class. She served on the Elon Moot Court Board and as symposium editor on the Elon Law Review. She earned her BA summa cum laude from Elon College where she studied French. She is a member of the North Carolina State Bar.
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