Archive

Tag: summary ejectment
  • 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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  • 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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  • Is Service by Posting Available in Non-Residential Leases?

    North Carolina small claims magistrates across the state report that most summary ejectment actions are served by posting, and that’s not surprising. GS 42-29, the statute establishing the procedure for service of process in such cases, establishes a very narrow window within which the officer must operate: the officer must visit the defendant’s place of abode to attempt personal service within five days of the summons being issued, but at least two days prior to the court date. For the most part this brief span of time does not permit an officer to make a second effort at personal service. Consequently, in those instances in which no one opens the door to accept service, the officer is instructed by the statute to post the complaint and summons to a conspicuous place on the rental premises. This method of service — variously referred to as service by posting or nail and mail — has long been a legally permissible alternative means of service in certain circumstances. In this blog post, I’m going to explore whether and how this works in a situation in which the rental agreement involves something other than a residential setting.

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  • Unconscionability, Public Housing & Summary Ejectment

    In a prior post, I talked about Eastern Carolina Regional Housing Authority v. Lofton, 767 S.E.2d 63 (2014), a North Carolina Court of Appeals case requiring a landlord seeking summary ejectment based on breach of a lease condition to prove as an essential element of the case “that summarily ejecting [the] defendant would not be unconscionable.” Last week the North Carolina Supreme Court disagreed in a long-awaited opinion, making clear that “the equitable defense of unconscionability is not a consideration in summary ejectment proceedings.” In so doing, the Supreme Court finally put the issue to rest, reconciling inconsistent statements of the law in several Court of Appeals cases, including Lincoln Terrace Associates v. Kelly, Charlotte Housing Authority v. Fleming, 123 N.C. App. 511 (1996), and Durham Hosiery v. Morris. Today, NC law provides that in an action for summary ejectment based on breach of a lease condition, it is sufficient for a landlord to demonstrate that the tenant breached the lease in a manner triggering the right to declare a forfeiture; the landlord has no additional burden to demonstrate that the result of such forfeiture will not be unconscionable.  The Lofton opinion, written by Justice Newby, is significant for another reason: the Court also addressed the relative roles of a public housing authority (PHA) and a trial court in a summary ejectment action based on criminal activity in violation of the lease.

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  • Business or Shelter: When the Commercial/Residential Distinction Makes a Difference in Landlord-Tenant Cases

    My topic for today’s post is drawn from an email I received last week from a magistrate asking several great questions. Here’s what she wrote:

    “I was just thinking about tenant/landlord relationships and types of leases. . . . What are the differences between regular lease agreements and that for commercial properties that we as magistrates need to know? Do they both have the same notice requirements? Are commercial property evictions cases that magistrates would preside over in small claims court? Are the grounds for eviction identified in [Small Claims Law] on page 157 the same for commercial leases?” In preparing to answer these questions, I learned some things I thought some of you might find interesting.

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  • Minimum Notice Requirements in Small Claims Actions

    It’s not hard to understand why every state in the United States offers its residents a small claims court. Small claims courts offer two advantages increasingly hard to come by in the court system: they’re cheap, and they’re fast. In 2009 the North Carolina General Assembly took steps to ensure that small claims cases aren’t decided too fast by enacting minimum notice requirements.  Prior to this legislation, a small claims defendant might be served Monday evening for a trial held Tuesday morning. The legislation enacted two separate amendments establishing different minimum notice requirements for (1) summary ejectment actions, and (2) all other small claims cases.  As we shall see, despite their differences, the guiding principles for magistrates implementing the legislation are the same for both types of lawsuits.

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  • G.S. 42-3: The Landlord’s Life Preserver

    At common law a landlord confronted with a non-paying tenant had only one hope for regaining possession of rental property: a lease provision spelling out that the tenant’s default would trigger the landlord’s right to repossess the property (commonly referred to as a forfeiture clause). When the parties have agreed in advance to this consequence for failure to pay rent, an action for summary ejectment merely asks the court to enforce the agreement of the parties. The common law rule was that absent such agreement, the landlord was left to the unsatisfactory recourse of cutting his losses by terminating the lease as soon as possible and attempting to collect unpaid rent through an action for money owed — with all of the attendant problems associated with the collection of money judgments.

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  • Subject Matter Jurisdiction in Actions for Summary Ejectment

    For hundreds of years, the law has provided a procedure for landlords to obtain assistance from the justice system in ousting a tenant and taking back rental property. In North Carolina in the late 19th Century, just as today, “proceedings in ejectment” were one of the most common types of civil cases filed. I recently spent some time reading many older landlord-tenant cases in an effort to trace the development of the law pertaining to subject matter jurisdiction in summary ejectment cases. I began with some reservations about the continued relevance of these cases. After all, North Carolina’s entire court system was revised – and the Rules of Civil Procedure adopted– after many of these cases were decided. Justices of the peace no longer hold court, and appeal from small claims court is to district—not superior—court today. What I found striking in doing this research was actually how little has changed. The questions in the late 1800s may have used different legal terminology, but would be familiar to any small claims magistrate. One of the most common issues, for example, was whether a seller/landlord could regain possession of property subject to a rent-to-own agreement by way of summary ejectment.  Another was whether a buyer by way of foreclosure could use summary ejectment to oust the former owner. What I found is that the rules governing jurisdiction in ejectment cases have remained remarkably consistent in application, although the underlying rationale for the rules has, from the beginning, been considerably more variable. This post attempts to summarize those procedural rules where they are clear. In my next post, I’ll discuss some troublesome areas in which clarity is lacking. Continue Reading

  • Special Rules for Summary Ejectment Actions

    In my last post, I outlined the most significant procedural differences between general civil actions and actions brought in small claims court, which are governed in large part by GS Ch. 7A, Art. 19. Overall, the procedure in small claims court is simpler, faster, and cheaper. The substantive rules and procedures for summary ejectment, the most common small claims action, are highly specialized and allow for even faster relief. Summary ejectment is a legal action brought by a landlord seeking to remove a breaching tenant from possession of rental property.  North Carolina joins a large number of states in offering landlords this carefully crafted remedy, which may at first appear unusual in its provision of frank preferential treatment to a particular group of litigants seeking a particular remedy.  The US Supreme Court approved such specialized treatment many years ago, however, pointing out that providing an expedited procedure for these cases makes sense in the larger context of laws prohibiting the common law practice of self-help eviction. “The objective of achieving rapid and peaceful settlement of possessory disputes between landlord and tenant has ample historical explanation and support. It is not beyond the State’s power to implement that purpose by enacting special provisions applicable only to possessory disputes between landlord and tenant.” Lindsey v. Normet, 405 U.S. 56, 72, 92 S. Ct. 862, 873, 31 L. Ed. 2d 36 (1972). In this blog entry, I’ll identify the most significant distinctions between the usual procedural rules applicable to small claims court and those applicable only to actions for summary ejectment.

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  • Summary Ejectment & Unconscionability: When Breach of the Lease Is Not Enough

    North Carolina law permits summary ejectment from residential housing only for reasons specified in the statute. G.S. 42-25.6.  In Eastern Carolina Regional Housing Authority v. Lofton, 767 S.E.2d 63 (2014), the North Carolina Court of Appeals decided a case—and created new law – related to one of the most common grounds for summary ejectment: breach of a lease condition which, according to the lease itself, triggers the landlord’s right to declare the lease forfeited.

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