Archive

Tag: small claims
  • New Legislation on Landlord’s Out-of-Pocket Expenses

    One of the General Assembly’s last acts before adjourning in June was the enactment of S.L. 2018-50 (S 224), amending landlord-tenant law in apparent response to a decision by a Wake County Superior Court Judge. See “It’s Landlords vs. Tenants in Eviction Battle,” Raleigh News & Observer 6/18/2018.

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  • Don’t Try This at Home: Self-Help Evictions

    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. Continue Reading

  • File Under ‘Boring But Important’: Counting Time in Small Claims Court

    Small claims magistrates know that the small claims statutes are filled with rules about time limits. For example, small claims cases must be calendared for trial within 30 days of the complaint being filed, but summary ejectment actions must be calendared within seven (excluding weekends and holidays). A defendant must be served no later than five days before trial in all small claims actions other than summary ejectment, which requires only a two-day notice. The list goes on. Magistrates often ask about how to calculate these various time periods and the purpose of this post is to provide information about that often confusing task.

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  • New Law: Who Can Appear on Behalf of a Party in Small Claims Court and on Appeal?

    In a previous post I talked about the law related to who can appear on behalf of a party in a small claims case. To briefly reiterate, small claims law makes two exceptions to the general rule requiring parties to be represented by an attorney if they do not choose to represent themselves. One exception allows corporations to appear in small claims court through an agent. See Duke Power Co. v. Daniels, 86 NC App 469 (1987).  The other exception, applicable only in summary ejectment actions, allows agents with actual knowledge of the relevant facts to sign the summary ejectment complaint and (presumably) represent the plaintiff/owner in the small claims action. See GS 7A-216 and 7A-223. Both exceptions are well-established and reasonably straightforward, subject to a few somewhat uncertain points I addressed in my previous post.

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  • A lease is a contract, but………

    In my last post, I emphasized the contractual nature of a rental agreement. My main point was that the agreement between the landlord and tenant, whether oral or written, is where a small claims magistrate begins in a summary ejectment lawsuit. Often parties wrongly assume that some aspect of their mutual commitments “goes without saying.” In fact, a summary ejectment action is at its heart a breach of contract lawsuit, and the specific terms of the contract are the starting point in determining any dispute.

    While the lease is always the beginning point, the magistrate’s analysis must often go further than just the parties’ agreement. As I’ve previously discussed, landlord-tenant law is replete with special rules, some (mostly procedural) tending to favor the landlord and some (mostly substantive) tending to favor the tenant. The US Supreme Court has pointed out that these procedural advantages and consumer protections, viewed together, work to balance the legal scales related to this unique legal relationship. Lindsey v. Normet, 405 U.S. 56, 72, 92 S. Ct. 862, 873, 31 L. Ed. 2d 36 (1972). This post highlights some of the many ways consumer protection legislation affects the residential contractual agreements between landlords and tenants. The discussion that follows is limited to that sort of agreement. Continue Reading

  • A Lease is a Contract

    Summary ejectment law is a complicated, confusing mishmash of modern-day consumer protection legislation, centuries-old property law, and plain old contract law, Getting in too deeply can lead to a person starting to throw around phrases like livery of seisin (a very old term from feudal England that basically required the old landowner to hand the new landowner a piece of dirt).  That slip into madness is not required. While there’s nothing intuitive about livery of seisin, we’ve all understood contract law since childhood. My six-year-old son once traded his 3-year-old sister two stuffed animals for lifetime rights in “the good chair.” In the complicated world of summary ejectment law, sometimes it’s useful to remember a simple truth: a lease is a contract. So let’s think about what we all know about contracts, and then apply that knowledge to leases. Continue Reading

  • New Legislation regarding Summary Ejectment

    Landlords often encounter a frustrating situation when they file a lawsuit for eviction and past due rent, resulting, ironically, from the interaction of two laws intended to benefit landlords. First, GS 42-29 requires the sheriff to expedite service of process by mailing the tenant the complaints and summons “as soon as practicable.” Within the next five days, and at least two days before the trial, the officer must visit the tenant’s home to attempt personal service. If no one answers the door when the officer knocks, the second special rule for summary ejectment cases kicks in, allowing the officer to simply post the summons and complaint on the door. Such “service by posting” allows the trial to go forward even though the tenant has not been personally served.

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  • Marco Polo and Mobile Home Spaces

    When I was a child, sharing the backseat of a station wagon with my brother and sister on long summer road trips, we used to play the First Thing You Think Of word association game. You know the one, where your sister says Cold and you say Hot, as fast as you can. Salt and pepper. Marco? Polo! The only thing that’s really changed now that I’m grown up are the words. Mobile home space? If you thought 60 days, this blog is for you.

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  • Action to Renew a Judgment – But Not Really

    Many small claims magistrates hold court for years before encountering an action to renew a judgment, but when they do, they are often uncertain about it – and for good reason! North Carolina trial courts as well as appellate courts have stumbled over the nature of this unique claim for relief.

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  • The Court of Appeals on When a Payment is “Due”

    The North Carolina Court of Appeals issued an opinion last week that may – or may not–have some implications for residential leases in North Carolina. At the very least, RME Management, LLC, v. Chapel H.O.M. Associates, LLC (filed 1/17/2017) makes me think I should give a longer answer when a small claims magistrate asks me a particular question about summary ejectment law. But more on that later. First, let’s take a look at RME.

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