I’m writing today about a seemingly simple question: When a tenant lives in one county and rental property is located in a different county, where should a summary ejectment action be filed? Obviously, most summary ejectment actions involve a tenant who resides ON the rental property, but this is not always the situation. Sometimes, tenants have vacated residential rental property and moved to a new county. Also, in non-residential leases, tenants quite often live in a different county. After researching and thinking about this issue at considerable length, I’ve come to a new and different understanding of the law relevant to this question, which I want to share with you today.
Archive
Tag: small claims
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Summary Ejectment Roundtable
On June 14, approximately 30 people – including yours truly – participated in a Statewide Roundtable on Summary Ejectment jointly sponsored by AOC and the Bolch Judicial Institute. Participants included representatives from Legal Services, the private bar, the Duke Civil Justice Clinic, the N.C. Justice Center, and other non-profits, along with magistrates, clerks, district court judges, and AOC staff. Not surprisingly, the training and performance of small claims magistrates was one of several areas of focus, and that discussion was wide-ranging and free-flowing. My topic today is an extremely cherry-picked list of five procedural errors participants mentioned having encountered in summary ejectment actions. These are anecdotal reports, and I do not have the sense that most of them are common errors. (I sure hope not!) But when they occur, they are serious errors, and so I want to address them. Here goes. . .
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A Lease or a License?
Every small claims magistrate knows that a “simple landlord-tenant relationship” is a jurisdictional requirement in summary ejectment actions. In most cases the existence of such a relationship is quite clear, but that’s not always so. When the property in question is something other than a home or business, questions sometimes arise. For example, what if an agreement involves a boat slip? A stall at a flea market? A horse stall in a stable? A chair in a beauty salon? In these situations and countless others, the legal issue is whether the agreement between the parties should be characterized as a lease or a license.
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Small Claims Magistrates: Don’t Make These Mistakes in Summary Ejectment Cases!
After teaching and advising magistrates about landlord-tenant law for a little more than a decade, I’ve become familiar with their most common errors – which have, somewhat discouragingly, remained pretty much the same throughout that time. All of these errors arise from neglecting to independently analyze the requirements and defenses of each of the four grounds for eviction. Those grounds are briefly summarized below, followed by a list of errors most often made when magistrates confuse them. If you are such a magistrate, please consider having this blog post tattooed somewhere on your body:
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When the Nanny Won’t Leave: NC Law on When Employees are Tenants
In 2014 the story of a California family and a live-in nanny who refused to leave after her employment ended made international news –- including Dr. Phil! According to media accounts, the parties agreed that the nanny would provide childcare and light housekeeping in exchange for room and board. An argument ensued as to whether the nanny was performing her duties as originally agreed, and her employment was terminated. When the nanny retired to her bedroom rather than vacating the property, the situation deteriorated further. Law enforcement refused to intervene, saying the dispute was “a civil matter.” Eventually the nanny voluntarily moved out. One media account commented, “Even though the nanny is gone, [one of the family members] says she still casts a long dark shadow in her home, saying, ‘As far as I see it, she’s, in a way, like a vampire and she hasn’t yet drained us.’”
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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
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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