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UPDATE:  During the third extra session of 2018, the General Assembly passed House Bill 1025.  It was signed by Governor Cooper and became law effective December 14, 2018.  It is now Session Law 2018-142.  The full text is available here.  Senate Bill 778 did not pass.

UPDATE #2: Although SB 778 did not pass during the 2018 legislative session, Session Law 2019-178 incorporated identical provisions of SB 778 described in Sections A, C and D below.  Session Law 2019-178 went into effect on July 26, 2019.

In all of the hustle and bustle of news related to the budget, you may have missed a bill filed that impacts law regarding estates and powers of attorney.  Below are just some of the changes that would occur if Senate Bill 778 becomes law.  You can follow along with the progress of this bill here.   [Note, House Bill 1025 includes some of the changes in SB 778 related to powers of attorney as indicated below; HB 1025 does not include the living probate, estate administration, or electronic wills changes described in this post. You can follow along with the progress of HB 1025 here.]

Most small claims actions in North Carolina are for summary ejectment:  an action by a landlord asking the court to terminate the lease of a breaching tenant and award possession to the landlord. In residential leases, landlords are prohibited by law from “self-help” evictions – i.e., forcibly removing a tenant and his property, padlocking the premises, or rendering the premises uninhabitable by cutting off electricity or water. GS 42-25.6. The magistrate’s role in summary ejectment ends when the magistrate makes a decision (enters judgment). But for the landlord, a favorable judgment is simply the first step in a lengthier and more complicated process.

Consider the following scenario: Laura Landlord wins her summary ejectment action against Tommy Tenant. The magistrate announces a decision in Laura’s favor and completes a written judgment form. With a copy of the written judgment in hand, Laura might understandably assume that Tommy must immediately vacate the property, but that is not the case. That written judgment is not the piece of paper she needs to oust Tommy. The value of the judgment is that it entitles Laura to ask the clerk to issue a writ of possession directing the sheriff to remove Tommy. But that’s not going to happen tonight – or tomorrow. First, we must wait to see whether Tommy appeals the magistrate’s judgment.

To legally carry a concealed handgun in North Carolina, a person must receive a permit from the county sheriff.  When considering an application for a permit, the sheriff is required […]

It is not uncommon for third parties to assert rights or claims against parents litigating child custody and child support. For example, grandparents frequently want the court to grant them visitation rights as part of a custody order resolving a dispute between the child’s mother and father. Similarly, the IV-D child support enforcement agency or a non-parent who has been caring for a child often need to assert rights or claims in child support cases pending between the child’s parents.

Before these people can assert claims or rights in an existing case, they must become parties to the case through the process of intervention.

READ POST "Intervention in Custody and Child Support Cases (May 16, 2018)"

I previously wrote about an agent’s authority to make gifts under the new North Carolina Uniform Power of Attorney Act (NCUPOAA) that went into effect in North Carolina on January 1, 2018.  There are two additional points to keep in mind if you are an agent, a third party, or a court examining the agent’s authority granted by the principal to make gifts under a POA.

Since this post was published, the NC General Assembly enacted S.L. 2019-33, effective Oct. 1, 2019. Amendments include removal of the words “remain” and “subsequent” in the statutes addressing permanency planning.

First came the cease reunification efforts shuffle resulting from 2015−2017 statutory changes to the NC Juvenile Code and published appellate decisions interpreting those changes (see my last blog post, here). And now, In re C.P., ___ N.C. App. ___ (March 6, 2018) has created the elimination of reunification as a permanent plan two-step.

A magistrate once told me that the advice given to members of the public by many law enforcement officers and courthouse personnel may be summarized as ATM: Ask the Magistrate. The locations of magistrates’ offices, unlike those of judges, are known to the public, and their doors are — if not actually open – at least accessible. Their telephone numbers are publicized, and when the public calls, that call will be answered by a magistrate. So it’s not surprising that magistrates spend a significant amount of time interacting with citizens seeking legal assistance, walking that fine line between helpfully providing legal information and carefully refraining from giving legal advice. While the questions a magistrate may be asked on any given day are likely to vary over a truly amazing range of topics, there are a few subjects that come up all the time. One of them – the subject of this post – has to do with whether and under what circumstances a landlord may lawfully force a tenant to vacate rental premises—a practice commonly referred to as self-help eviction.

Rule 9(j)’s special pleading requirement Rule 9(j) of the North Carolina Rules of Civil Procedure requires plaintiffs filing medical malpractice complaints to include a specific allegation not required in other […]

Father files a complaint alleging mother breached terms of an agreement by not paying alimony and child support. Mother admits she has not paid but argues that she should not have to pay because dad consistently has failed to comply with the custody provisions of the agreement by refusing to allow her to see the children and has repeatedly violated a provision in the agreement that he would not harass her.

Can father enforce the contract against mother if mother proves he also breached the contract? Does his breach excuse mother’s performance?

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