Hurricane Helene caused historic flooding in Western North Carolina, destroying or damaging approximately 126,000 residential properties. Many of those properties were occupied by tenants who now find themselves in unfit or uninhabitable properties. The owners of affected rental properties face the difficulty and expense of either rebuilding or making major repairs to return the properties to a fit and habitable condition. In addition to housing issues, many tenants have been left unemployed either temporarily or permanently due to damage or destruction of businesses. Loss of employment leads to difficulty paying rent which in turn affects the landlord’s ability to pay the mortgage. This cycle sometimes results in actions for “summary ejectment,” the legal term for “eviction” in North Carolina. This post will explore key issues in summary ejectment in the aftermath of a natural disaster and potential sources of assistance.
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Tag: summary ejectment
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Details Matter: The Importance of Proper Notice in Summary Ejectment Proceedings
In a series of recent decisions from the Court of Appeals, tenants in federally subsidized and federally funded properties have challenged whether the notice they received from their landlords was effective to terminate their leases. (See L.I.C. Assoc. I, Ltd. P’Ship v. Brown, __ N.C. App. __, 904 S.E.2d 822 (2024); see also Rosewood Estates I, LP v. Drummond, 290 N.C. App. 366 (2023) (unpublished); and Oxford Housing Authority v. Glenn, 290 N.C. App. 243 (2023) (unpublished). In all three cases, the landlords failed to comply with lease provisions mandated by federal regulations, including requirements for notice of lease termination and the Violence Against Women Act (VAWA). While these cases arose in the context of federally funded housing, the lessons they teach about proper notice to terminate a lease are applicable more broadly. Using facts from these cases, this post will trace a scenario where notice is at issue and explore what the law requires.
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Navigating Summary Ejectment Cases Involving Public and Subsidized Housing
Magistrates from around the state report to me that summary ejectment actions involving public housing authorities seem to be on the rise. In North Carolina, summary ejectment is the judicial process by which a landlord can seek an order of the court granting the landlord possession of a rental property. The two-step process begins with a judgment for possession rendered by a judicial official, often a magistrate in small claims court, and is completed by the issuance of a writ of possession that authorizes the sheriff to remove tenants who fail to vacate the rental property or who fail to stay the issuance of a writ of execution. When the landlord is a public housing authority or a participant in a housing voucher program, both state and federal housing laws are involved which adds to the level of complexity already present in an action for summary ejectment. In fact, these types of cases are specifically referred to as “complex” in GS 7A-222(b), the statutory provision that authorizes magistrates to reserve judgment in more complex summary ejectment actions. Added to the legal complexity are the high stakes for renters with low incomes who may be ineligible for participation in subsidized housing for years following an eviction.
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As the Summary Ejectment Case Turns
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.
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Issues with Assistance Animals in Summary Ejectment Cases
Both federal and North Carolina fair housing laws make it unlawful for a housing provider to refuse to make a reasonable accommodation that a person with a disability may need to have an equal opportunity to enjoy and use a dwelling. (42 U.S.C. 3601 et seq., G.S. Ch. 41A.) On January 28, 2020, the U.S. Department of Housing and Urban Development (HUD) issued FHEO Notice: 2020-01, hereinafter the “Assistance Animal Notice,” to provide guidance about how to assess a request to have an assistance animal in rental housing as a reasonable accommodation under the federal Fair Housing Act (FHA). The Assistance Animal Notice was a response to the rising number of complaints about the denial of reasonable accommodations for assistance animals and concerns about individuals with disabilities wasting their money on so-called “certificates” for assistance animals sold by websites that are not providing health care services by legitimate, licensed health care professionals to the individuals.
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How Does New Legislation Addressing “Transient Occupancy” Impact the Landlord-Tenant Analysis in Summary Ejectment?
Every magistrate has picked up the phone to a caller who is staying at a hotel asking if he is a tenant or a hotel guest. If it is not the occupant calling, then it is the owner of the hotel asking if they have to evict the occupant or if they can take out trespass charges. Recent legislation, S.L. 2023-5, defines “transient occupancy” in inns, hotels, motels, recreational vehicle parks, campgrounds, and other similar lodgings in a manner that may provide some clarification for callers who are owners and residents of these types of lodgings. Continue Reading
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Only One Bite at the Apple – and Small Claims Court Counts!
The NC Court of Appeals recently answered a question I’ve long wondered about in Brown v. Patel, 2021-NCCOA-342 (20 July 2021). Although this lawsuit started out as a bedbug case – which is definitely on my list of interesting topics! – it ended up being about what happens when a magistrate doesn’t make a decision. Read on for the riveting details!
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My Last Post on the CDC Eviction Moratorium, Almost for Certain
Readers are probably aware that the CDC Eviction Moratorium has been extended until July 31, accompanied for the first time by a statement that it is unlikely to be further extended. However, the Governor’s Executive Order 171 was not extended and so expired on June 30. I’ve received many questions from judicial officials and other occupants of Landlord-Tenant Land about what the law of summary ejectment looks like for July. For a summary of both the CDC Order and EO 171, I encourage you to read my prior blog post, in which I discuss both orders separately. That post should be helpful in making clear what law continues to apply (i.e., the CDC Order) and what law is no longer in effect (i.e., EO 171). In this memo, I’m offering a few specific observations in response to the most frequent questions I’ve been getting.
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Summary Ejectment in the Time of COVID, Part 1: The CARES Act
If you are a judicial official hearing summary ejectment actions right now, you have plenty to be confused about. I’ve recently received a number of inquiries from you asking why you’re still receiving CARES Act affidavits (CVM-207), since the eviction moratorium imposed by the Act expired in late July. The short answer is that the affidavit may contain useful information which continues to be relevant to your disposition of an SE case. In this blog post, I’ll explain what that information is and what you should do with it.
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More on the Protecting Tenants at Foreclosure Act
* Note, this post focuses solely on the application of the federal Protecting Tenants at Foreclosure Act to Chapter 45 power of sale foreclosure proceedings. Many foreclosures and evictions of occupants from properties acquired through foreclosure, including pursuant to an order for possession under G.S. 45-21.29(k) (the subject of this post), remain subject to a federal moratorium due to the pandemic. This moratorium was recently extended through December 31, 2020. To read more about current federal and state limits imposed on foreclosure proceedings due to the pandemic, click here.
A borrower stops making his home mortgage payments. A lender files a power of sale foreclosure pursuant to G.S. Chapter 45 to foreclose the lien of the deed of trust. After title to the property is transferred to a new owner out of the foreclosure, an occupant remains on the property. The new owner of the property, also known as the successor in interest, files a petition with the clerk of superior court under G.S. 45-21.29(k) for an order for possession. The petition and other evidence provided by the petitioner meet requirements of subsection (k) but the petition also states the occupant is a bona fide tenant.* Continue Reading