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!Continue Reading
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 That post should be helpful in making clear what law continues to apply (i.e., the CDC Order) and what law is no longer in effect (i.e., EO 171).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.Continue Reading
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.Continue Reading
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
Summary Ejectment: Will the CARES Act Solve the Backlog Problem?
On June 2 Chief Justice Beasley’s order continuing pending actions – including actions for summary ejectment – will expire. While that expiration date may be extended, it seems more likely that small claims magistrates will once again be hearing cases after that date, albeit under quite different conditions.
In this post am going to talk in considerable detail about a new federal law that affects eviction cases in North Carolina (and every other state). This law establishes an eviction moratorium and new notice requirements on two different types of “covered properties:” housing subsidized by participation in a federal assistance program, and housing financed by a federally-backed mortgage loan. Significant questions exist about how these provisions should be applied in North Carolina’s courts.Continue Reading
Where are We Now: The Protecting Tenants at Foreclosure Act
As I noted in a prior blog post, the US Congress restored the federal Protecting Tenants at Foreclosure Act (PTFA) without expiration on June 23, 2018. The PTFA has been in effect, expired, and restored at various points over the past decade. During one period after the PTFA expired, the NC General Assembly passed a law (S.L. 2015-178) to provide somewhat similar (but not exact, more on that below) protections for tenants of foreclosed property under state law. Most recently, the NC General Assembly took action to repeal that law in light of the permanent restoration of the PTFA. See S.L. 2019-53 and S.L. 2019-243. This blog post tracks where we’ve been and where the law currently stands related to the PTFA and power of sale foreclosures under G.S. Chapter 45 in NC.Continue Reading
Small Claims Appeals in Summary Ejectment Cases
In Small Claims Land there are so many questions about appeals for trial de novo that I could write a book – if only I knew the answers. Ba-dum-bum-CHING! In light of my limited mastery of a mysterious topic, a blog post seems like a better idea than a book. Today I’m going to talk about five possible endings in district court when a summary ejectment case is appealed. Certainly, there are more than five, so this list is not exhaustive. My hope is that at least one of them will be informative for you.
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. . .Continue Reading
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.
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:Continue Reading