GSNC

ARTICLE 1. General Provisions.

Sec.

§ 42-1. Lessor and lessee not partners.

No lessor of property, merely by reason that he is to receive as rent or compensation for its use a share of the proceeds or net profits of the business in which it is employed, or any other uncertain consideration, shall be held a partner of the lessee.

History

(1868-9, c. 156, s. 3; Code, s. 1744; Rev., s. 1982; C.S., s. 2341.)

Legal Periodicals. - For case law survey as to landlord and tenant law, see 44 N.C.L. Rev. 1027 (1966); 45 N.C.L. Rev. 968 (1967).

For note discussing the enforceability of assessments against property owners in residential developments in light of Figure Eight Beach Homeowners' Ass'n v. Parker, 62 N.C. App. 367, 303 S.E.2d 336, cert. denied, 309 N.C. 320, 307 S.E.2d 170 (1983), see 7 Campbell L. Rev. 33 (1984).

CASE NOTES

The lessor and lessee are not partners. State v. Keith, 126 N.C. 1114, 36 S.E. 169 (1900).

Where B was to furnish land, farming implements, feed and a team and W was to do the work, and the crops were to be equally divided, it was held that this was not an agricultural partnership. Lawrence v. Week, 107 N.C. 119, 12 S.E. 120 (1890). See also, Day v. Stevens, 88 N.C. 83 (1883), explaining and correcting Curtis v. Cash, 84 N.C. 41 (1881); Keith v. Lee, 246 N.C. 188, 97 S.E.2d 859 (1957).

Applied in Moss v. Hicks, 240 N.C. 788, 83 S.E.2d 890 (1954).

Cited in Perkins v. Langdon, 231 N.C. 386, 57 S.E.2d 407 (1950); Johnson v. Gill, 235 N.C. 40, 68 S.E.2d 788 (1952); Bowman v. Drum, 97 N.C. App. 505, 389 S.E.2d 125 (1990).

§ 42-2. Attornment unnecessary on conveyance of reversions, etc.

Every conveyance of any rent, reversion, or remainder in lands, tenements or hereditaments, otherwise sufficient, shall be deemed complete without attornment by the holders of particular estates in said lands: Provided, no holder of a particular estate shall be prejudiced by any act done by him as holding under his grantor, without notice of such conveyance.

History

(4 Anne, c. 16, s. 9; 1868-9, c. 156, s. 17; Code, s. 1764; Rev., s. 947; C.S., s. 2342.)

CASE NOTES

Lessee Becomes Tenant of Grantee. - When title passes, the lessee ceases to hold under the grantor. He then becomes a tenant of grantee, and his possession is grantee's possession. Pearce v. Gay, 263 N.C. 449, 139 S.E.2d 567 (1965).

Rent Follows Reversion. - Rent due under a lease follows reversion. Perkins v. Langdon, 231 N.C. 386, 57 S.E.2d 407 (1950).

Cited in Murphrey v. Winslow, 70 N.C. App. 10, 318 S.E.2d 849 (1984).

§ 42-3. Term forfeited for nonpayment of rent.

In all verbal or written leases of real property of any kind in which is fixed a definite time for the payment of the rent reserved therein, there shall be implied a forfeiture of the term upon failure to pay the rent within 10 days after a demand is made by the lessor or his agent on said lessee for all past-due rent, and the lessor may forthwith enter and dispossess the tenant without having declared such forfeiture or reserved the right of reentry in the lease.

History

(1919, c. 34; C.S., s. 2343; 2001-502, s. 2; 2004-143, s. 1.)

Effect of Amendments. - Session Laws 2004-143, s. 1, effective August 1, 2004, deleted the former last sentence, which read: "Where a written lease establishes a monthly rent that includes water and sewer services under G.S. 62-110(g), the terms 'rent' and 'rental payment', as used in this Chapter, mean base rent only."

Legal Periodicals. - For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).

For a comment on landlords' eviction remedies in the light of Spinks v. Taylor, 303 N.C. 256, 278 S.E.2d 501 (1981), and the 1981 Act to Clarify Landlord Eviction Remedies in Residential Tenancies, see 60 N.C.L. Rev. 885 (1982).

For a comment on the Landlord Eviction Remedies Act in light of Spinks v. Taylor, 303 N.C. 256, 278 S.E.2d 501 (1981), see 18 Wake Forest L. Rev. 25 (1982).

For survey of 1982 law on property, see 61 N.C.L. Rev. 1171 (1983).

CASE NOTES

Purpose of Section. - This section was passed to protect landlords who made verbal or written leases and omitted in their contracts to make provision for reentry on nonpayment of rent when due. The consequence was that often an insolvent lessee would avoid payment of rent, refuse to vacate and stay on until his term expired. Ryan v. Reynolds, 190 N.C. 563, 130 S.E. 156 (1925).

Section Construed with G.S. 42-33. - This section and G.S. 42-33 are in pari materia, and should be construed together. Ryan v. Reynolds, 190 N.C. 563, 130 S.E. 156 (1925).

G.S. 42-33 construed in pari materia with this section. Charlotte Office Tower Assocs. v. Carolina SNS Corp., 89 N.C. App. 697, 366 S.E.2d 905 (1988).

This section and G.S. 42-33 are remedial in nature and will apply only where the parties' lease does not cover the issue of forfeiture of the lease term upon nonpayment of rent. Where the contracting parties have considered the issue, negotiated a response, and memorialized their response within the lease, the trial court appropriately should decline to apply these statutory provisions. Charlotte Office Tower Assocs. v. Carolina SNS Corp., 89 N.C. App. 697, 366 S.E.2d 905 (1988).

Provision Written into Lease. - This section writes into a contract of a lease of lands, when the lease is silent thereon, a forfeiture of the terms of the lease upon failure of the lessee to pay the rent within 10 days after a demand is made by the lessor or his agent for all past due rent, with right of the lessor to enter and dispossess the lessee. Ryan v. Reynolds, 190 N.C. 563, 130 S.E. 156 (1925).

Statutory forfeitures under this section are not implied where the lease itself provides for termination upon nonpayment of rent. Stanley v. Harvey, 90 N.C. App. 535, 369 S.E.2d 382 (1988).

Forfeiture Is for Benefit of Lessor. - The forfeiture implied by this section is for the benefit of the lessor, and is to be declared only at his application. Monger v. Lutterloh, 195 N.C. 274, 142 S.E. 12 (1928), holding section not applicable to facts of case.

Demand is a necessary prerequisite to forfeiture for nonpayment of rent. Snipes v. Snipes, 55 N.C. App. 498, 286 S.E.2d 591, aff'd, 306 N.C. 373, 293 S.E.2d 187 (1982).

Forfeiture under this section for failure to pay rent is not effective until the expiration of 10 days after a demand is made on the lessee for all past due rent. Snipes v. Snipes, 55 N.C. App. 498, 286 S.E.2d 591, aff'd, 306 N.C. 373, 293 S.E.2d 187 (1982).

Ten Days After Demand. - Where a lease contained no forfeiture clause for failure to pay rent, and lessee, after lessor's death, paid rent to lessor's personal representative, to the knowledge of lessor's heir, the heir, who made no demand for the rent, could not declare the lease forfeited, since in the absence of a forfeiture clause, this section applied, and forfeiture under it was not effective until the expiration of 10 days after demand. First-Citizens Bank & Trust Co. v. Frazelle, 226 N.C. 724, 40 S.E.2d 367 (1946).

Where the lease contains no forfeiture clause for failure to pay rent, lessors may assert forfeiture for nonpayment of rent only after 10 days from demand upon lessees for payment. Reynolds v. Earley, 241 N.C. 521, 85 S.E.2d 904 (1955).

What Constitutes "Demand". - To constitute a "demand" under this section, a clear, unequivocal statement, either oral or written, requiring the lessee to pay all past due rent, is necessary. Snipes v. Snipes, 55 N.C. App. 498, 286 S.E.2d 591, aff'd, 306 N.C. 373, 293 S.E.2d 187 (1982).

Demand must be made with sufficient authority to place the lessee on notice that the lessor intends to exercise his or her statutory right to forfeiture for nonpayment of rent. Snipes v. Snipes, 55 N.C. App. 498, 286 S.E.2d 591, aff'd, 306 N.C. 373, 293 S.E.2d 187 (1982).

Where lessee waives all notice to vacate in the lease he cannot claim the benefit of this section. Tucker v. Arrowood, 211 N.C. 118, 189 S.E. 180 (1937).

Forfeiture Denied upon Tender of Rent and Costs. - Where, during the hearing and before judgment on a petition for forfeiture of a lease under this section, all rents and costs lawfully incurred were tendered to the petitioner, the petition was properly denied. Coleman v. Carolina Theatres, 195 N.C. 607, 143 S.E. 7 (1928).

Eviction of Tenants at Will Not Dependent upon Failure to Pay Rent. - Where a tenancy at will exists, a landlord's right to evict the tenants does not depend on whether the tenants have failed to pay their rent. Stout v. Crutchfield, 21 N.C. App. 387, 204 S.E.2d 541, cert. denied, 285 N.C. 595, 205 S.E.2d 726 (1974).

Upon Eviction, Tenancy at Will Instantly Expires. - When a landlord tells tenants to vacate the premises, their tenancy at will instantly expires, regardless of whether they have defaulted on the rent. Stout v. Crutchfield, 21 N.C. App. 387, 204 S.E.2d 541, cert. denied, 285 N.C. 595, 205 S.E.2d 726 (1974).

Tenants have the right to bring an immediate action for summary ejectment under G.S. 42-26(1). Stout v. Crutchfield, 21 N.C. App. 387, 204 S.E.2d 541, cert. denied, 285 N.C. 595, 205 S.E.2d 726 (1974).

Lessor Must Terminate Lessee's Estate Before Commencing Summary Ejectment Action. - The trial court erred in granting lessor summary ejectment of lessee since lessor's letter to lessee did not amount to notice that lease was terminated and lessor must terminate lessee's estate before commencing on summary ejectment action. Stanley v. Harvey, 90 N.C. App. 535, 369 S.E.2d 382 (1988).

Lessor was entitled to summary ejectment because the lessor had a right to dispossess the lessee and the sublessee under G.S. 42-3 as the lessee, when the sublessee quit paying rent to the lessee, failed to pay the past-due rent within 10 days of the date the lessor demanded payment of all past-due rent, and forfeiture of the commercial lease was then implied. Gardner v. Ebenezer, LLC, 190 N.C. App. 432, 660 S.E.2d 172 (2008).

Failure to Pay Taxes Not Equivalent of Failure to Pay Rent - Alleged failure of tenant to pay property taxes on real property the tenant occupied under a lease with an option to purchase was not the equivalent of breach of a covenant to pay rent, and the landlord was not justified in attempting to declare the lease void and force the tenant to sign a new lease at a higher rent without the option to purchase; as lease was still in effect, tenant had the right to exercise the option to purchase the property. Creech v. Ranmar Props., 146 N.C. App. 97, 551 S.E.2d 224 (2001), cert. denied and dismissed, 356 N.C. 160, 568 S.E.2d 191 (2002).

Applied in Green v. Lybrand, 39 N.C. App. 56, 249 S.E.2d 443 (1978).

Cited in Duke v. Davenport, 240 N.C. 652, 83 S.E.2d 668 (1954); Morris v. Austraw, 269 N.C. 218, 152 S.E.2d 155 (1967).

§ 42-4. Recovery for use and occupation.

When any person occupies land of another by the permission of such other, without any express agreement for rent, or upon a parol lease which is void, the landlord may recover a reasonable compensation for such occupation, and if by such parol lease a certain rent was reserved, such reservation may be received as evidence of the value of the occupation.

History

(1868-9, c. 156, s. 5; Code, s. 1746; Rev., s. 1986; C.S., s. 2344.)

Legal Periodicals. - For article on remedies for trespass on land in North Carolina, see 47 N.C.L. Rev. 334 (1969).

CASE NOTES

Judge Did Not Have Authority to Assign No Rental Value at All. - In an action under this section, while the trial judge had the authority to believe all, any or none of the landowner's testimony, and so to decline to accept her estimate of reasonable compensation, he did not have the authority to refuse to assign any rental value to the land at all. Even if the house on the property was fallen down or demolished, the land would still have had a rental value. Simon v. Mock, 75 N.C. App. 564, 331 S.E.2d 300 (1985).

Period of Limitations on Action for Fair Rental Value. - An action for the "fair rental value" of occupied property was brought upon a statutory liability under this section and was subject to the three-year statute of limitations provided for in G.S. 1-52(2). Such a cause of action accrued continually, for each day the property was occupied. Simon v. Mock, 75 N.C. App. 564, 331 S.E.2d 300 (1985).

Property owner was not entitled to 17 years of back rent from an occupier and an estate for use of his property because there was a three-year statute of limitations under G.S. 42-4 and G.S. 1-52(2). Perkins v. Watson, - F. Supp. 2d - (M.D.N.C. June 3, 2005).

Claim Against Administratrix for Reasonable Compensation Held Subject to Limitation Period in G.S. 28A-19-3. - A landowner's claim under this section for "reasonable compensation" for occupation of her property, brought against one of the former co-tenants as administratrix of her husband's estate, was presented to the administratrix within the statutory period (G.S. 28A-19-3) and was therefore not barred by the three-year statute of limitations (G.S. 1-52(2)) as of the decedent's death. The landowner was allowed to sue the administratrix for rents not paid in the period of three years prior to the decedent's death, although the action itself was not brought until some six months after this date. Simon v. Mock, 75 N.C. App. 564, 331 S.E.2d 300 (1985).

Where a lease was void under the statute of frauds, the lessors could only recover for the time the premises were occupied. Harty v. Harris, 120 N.C. 408, 27 S.E. 90 (1897).

Applied in Raleigh-Durham Airport Auth. v. Delta Air Lines, 429 F. Supp. 1069 (E.D.N.C. 1976).

§ 42-5. Rent apportioned, where lease terminated by death.

If a lease of land, in which rent is reserved, payable at the end of the year or other certain period of time, is determined by the death of any person during one of the periods in which the rent was growing due, the lessor or his personal representative may recover a part of the rent which becomes due after the death, proportionate to the part of the period elapsed before the death, subject to all just allowances; and if any security was given for such rent it shall be apportioned in like manner.

History

(1868-9, c. 156, s. 6; Code, s. 1747; Rev., s. 1987; C.S., s. 2345.)

§ 42-6. Rents, annuities, etc., apportioned, where right to payment terminated by death.

In all cases where rents, rent charges, annuities, pensions, dividends, or any other payments of any description, are made payable at fixed periods to successive owners under any instrument, or by any will, and where the right of any owner to receive payment is terminable by a death or other uncertain event, and where such right so terminates during a period in which a payment is growing due, the payment becoming due next after such terminating event shall be apportioned among the successive owners according to the parts of such periods elapsing before and after the terminating event.

History

(1868-9, c. 156, s. 7; Code, s. 1748; Rev., s. 1988; C.S., s. 2346.)

CASE NOTES

Section Inapplicable to Certain Annuities. - This section, providing that annuities shall be apportionable in certain instances, has no application to disability benefits payable annually under the terms of an insurance policy, since there is no provision for successive owners, and the right to payment terminates upon the death of the insured. Wells v. Guardian Life Ins. Co., 213 N.C. 178, 195 S.E. 394, 116 A.L.R. 130 (1938).

Rents Payable on Days Tenants Sold Crops Were Payable at "Fixed Periods". - Where the rents reserved were one-third of sale price of tobacco crops and were to be paid "at the warehouse" on the days the tenants sold tobacco, these sale days could not be designated in the lease, but they were no less "fixed periods" within the meaning of this section and "periodic payments" within the meaning of former G.S. 37-4. Wells v. Planters Nat'l Bank & Trust Co., 265 N.C. 98, 143 S.E.2d 217 (1965).

Section Provides for Successive Owners Under Same Instrument. - This section, by its terms, makes provision for successive owners under the same instrument. Wells v. Planters Nat'l Bank & Trust Co., 265 N.C. 98, 143 S.E.2d 217 (1965).

Owner of Fee Does Not Own Under Instrument Subsequently Executed. - Where predecessor owner had the fee prior to the execution of the instrument under which successive owners take, the former cannot be said to own by the instrument, i.e., the deed, will or trust indenture, by which the latter owners take. Wells v. Planters Nat'l Bank & Trust Co., 265 N.C. 98, 143 S.E.2d 217 (1965).

§ 42-7. In lieu of emblements, farm lessee holds out year, with rents apportioned.

When any lease for years of any land let for farming on which a rent is reserved determines during a current year of the tenancy, by the happening of any uncertain event determining the estate of the lessor, or by a sale of said land under any mortgage or deed of trust, the tenant in lieu of emblements shall continue his occupation to the end of such current year, and shall then give up such possession to the succeeding owner of the land, and shall pay to such succeeding owner a part of the rent accrued since the last payment became due, proportionate to the part of the period of payment elapsing after the termination of the estate of the lessor to the giving up such possession; and the tenant in such case shall be entitled to a reasonable compensation for the tillage and seed of any crop not gathered at the expiration of such current year from the person succeeding to the possession.

History

(1868-9, c. 156, s. 8; Code, s. 1749; Rev., s. 1990; C.S., s. 2347; 1931, c. 173, s. 1.)

Legal Periodicals. - As to the 1931 amendment to this section, see 9 N.C.L. Rev. 379 (1931).

For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).

CASE NOTES

Constitutionality. - This section is but a reasonable legislative regulation of the method and means whereby the remainderman, or succeeding owner, comes into possession and complete enjoyment of his estate, and is constitutional. King v. Foscue, 91 N.C. 116 (1884).

Protection of Remainderman. - This section was passed to protect the right of the remainderman and to secure for him his rent for the part of the year which had not elapsed at the time his title vested. Under the statute the remainderman is entitled to a part of the rent proportionate to the part of the year elapsing after the termination of the life estate and before the surrendering of possession to the remainderman. King v. Foscue, 91 N.C. 116 (1884); Hayes v. Wrenn, 167 N.C. 229, 83 S.E. 356 (1914); Collins v. Bass, 198 N.C. 99, 150 S.E. 706 (1929).

Section Apportions Rents When Life Tenant Dies During Lease Year. - This section apportions rents on farm leases which it extends in lieu of emblements, when the life tenant dies during the lease year. Wells v. Planters Nat'l Bank & Trust Co., 265 N.C. 98, 143 S.E.2d 217 (1965).

Only Applies If Such Death Determines Lease. - This section applies only to farm leases which are determined, inter alia, by the death of a life tenant. Wells v. Planters Nat'l Bank & Trust Co., 265 N.C. 98, 143 S.E.2d 217 (1965).

Where a settlor of a trust terminating on the death of the income recipient authorizes the trustee to make leases beyond the term of the duration of the trust, the leases so made do not terminate with the life tenant's death and this section does not apply. Wells v. Planters Nat'l Bank & Trust Co., 265 N.C. 98, 143 S.E.2d 217 (1965).

Lease for One Year Included. - The phrase "any lease for years" is used in a technical sense, and it embraces a lease for a single year. King v. Foscue, 91 N.C. 116 (1884).

Lease Continued to End of Year. - A lease of land made by a tenant for life terminates at his death, but by this section the lease is continued to the end of the current lease year so that the tenant's representatives may gather his crop. King v. Foscue, 91 N.C. 116 (1884).

Applied in Smith v. Smith, 65 N.C. App. 139, 308 S.E.2d 504 (1983).

Cited in Coleman v. Edwards, 70 N.C. App. 206, 318 S.E.2d 899 (1984).

§ 42-8. Grantees of reversion and assigns of lease have reciprocal rights under covenants.

The grantee in every conveyance of reversion in lands, tenements or hereditaments has the like advantages and remedies by action or entry against the holders of particular estates in such real property, and their assigns, for nonpayment of rent, and for the nonperformance of other conditions and agreements contained in the instruments by the tenants of such particular estates, as the grantor or lessor or his heirs might have; and the holders of such particular estates, and their assigns, have the like advantages and remedies against the grantee of the reversion, or any part thereof, for any conditions and agreements contained in such instruments, as they might have had against the grantor or his lessors or his heirs.

History

(32 Hen. VIII, c. 34; 1868-9, c. 156, s. 18; Code, s. 1765; Rev., s. 1989; C.S., s. 2348.)

CASE NOTES

When title passes, the lessee ceases to hold under the grantor and he becomes a tenant of the grantee. In other words, privity is automatically established between the lessor's grantee and the lessee. Murphrey v. Winslow, 70 N.C. App. 10, 318 S.E.2d 849 (1984), rev'd on other grounds, 313 N.C. 320, 327 S.E.2d 878 (1985).

The general rule is that the rights and liabilities existing between the grantee and lessee are the same as those existing between the grantor and the lessee, after the lessee is given notice of the transfer of the property. Murphrey v. Winslow, 70 N.C. App. 10, 318 S.E.2d 849 (1984), rev'd on other grounds, 313 N.C. 320, 327 S.E.2d 878 (1985).

The inclusion of a seal in a lease agreement neither creates a duty between the parties nor shifts a pre-existing duty from one party to the other. It merely extends, by operation of law, the period of time in which the parties expose themselves to suit on the particular sealed instrument from three years to 10 years. Murphrey v. Winslow, 70 N.C. App. 10, 318 S.E.2d 849 (1984), rev'd on other grounds, 313 N.C. 320, 327 S.E.2d 878 (1985).

Grantor Must Reserve Right If He Is to Collect Rents After Conveyance. - If the grantor is to collect rents accruing subsequent to the effective date of the conveyance, he must, by reservation in his deed, provide that the grantee shall not be entitled to possession prior to the expiration of the term fixed in the lease, or otherwise expressly reserve his right to collect subsequently accruing rents. Pearce v. Gay, 263 N.C. 449, 139 S.E.2d 567 (1965).

Substitution of Note or Bond Before Sale Relieves Lessee of Obligation to Pay Rent to Purchaser. - If lessee pays the rent before a sale, or executes a note or bond for the rent in substitution of his contract to pay the rent, and such note or bond is accepted by the then owner in discharge of lessee's obligation to pay rent, such substitution relieves the lessee of his obligation to pay rent. Since he has no obligation to pay rent, he is not obligated to pay the purchaser; his obligation is to the holder of the note or bond. Pearce v. Gay, 263 N.C. 449, 139 S.E.2d 567 (1965).

Cited in Perkins v. Langdon, 237 N.C. 159, 74 S.E.2d 634 (1953); Dixie Fire & Cas. Co. v. Esso Std. Oil Co., 265 N.C. 121, 143 S.E.2d 279 (1965).

§ 42-9. Agreement to rebuild, how construed in case of fire.

An agreement in a lease to repair a demised house shall not be construed to bind the contracting party to rebuild or repair in case the house shall be destroyed or damaged to more than one half of its value, by accidental fire not occurring from the want of ordinary diligence on his part.

History

(1868-9, c. 156, s. 11; Code, s. 1752; Rev., s. 1985; C.S., s. 2349.)

CASE NOTES

Provisions of section are limited to destruction of house by fire. Atlantic Disct. Corp. v. Mangel's of N.C. Inc., 2 N.C. App. 472, 163 S.E.2d 295 (1968).

No Application When House Damaged by Ice and Flood. - This section was enacted to change the rule, formerly existing, but limits its application to the destruction of a house by accidental fire, and only then where it is damaged to more than one half of its value. It does not apply to a case where the destruction is not by fire, but by ice and flood. Chambers v. North River Line, 179 N.C. 199, 102 S.E. 198 (1920).

§ 42-10. Tenant not liable for accidental damage.

A tenant for life, or years, or for a less term, shall not be liable for damage occurring on the demised premises accidentally, and notwithstanding reasonable diligence on his part, unless he so contract.

History

(1868-9, c. 156, s. 10; Code, s. 1751; Rev., s. 1991; C.S., s. 2350.)

Legal Periodicals. - For note on lessee's liability for sublessee's negligence, see 45 N.C.L. Rev. 295 (1966).

CASE NOTES

Implied Obligation to Use Reasonable Diligence. - In every lease there is, unless excluded by the operation of some express covenant or agreement, an implied obligation on the part of the lessee to use reasonable diligence to treat the demised premises in such manner that no injury is done to the property, so that the estate may revert to the lessor undeteriorated by the wilful or negligent act of the lessee. The lessee's obligation is based upon the maxim sic utere tuo ut alienum non laedas. Dixie Fire & Cas. Co. v. Esso Std. Oil Co., 265 N.C. 121, 143 S.E.2d 279 (1965).

Lessee is not liable for accidental damage by fire. Dixie Fire & Cas. Co. v. Esso Std. Oil Co., 265 N.C. 121, 143 S.E.2d 279 (1965).

Lessee is liable if buildings are damaged by negligence. Dixie Fire & Cas. Co. v. Esso Std. Oil Co., 265 N.C. 121, 143 S.E.2d 279 (1965).

When Lessor Is Liable to Third Parties. - While ordinarily the tenant and not the landlord is liable to third persons for injuries caused to them by failure to keep the premises in repair, the liability may be extended to the owner where the condition existed at the time the premises were leased, and for months and years, and the owner knew of it and had promised to rectify it at the solicitation of the tenant. Knight v. Foster, 163 N.C. 329, 79 S.E. 614 (1913).

Lessor and Lessee Both Held Liable. - Where a landlord leased the lower floor of his building as a store and rented an office above, which had defective plumbing, to a dentist, in an action by the lessee of the store for water damages to his stock of goods, evidence that the lessor had contracted to repair, but for years had failed to inspect or repair the plumbing, and that the dentist had approved an insufficient outlet for the water flowing from his cuspidor and had negligently left his cuspidor turned on during the night, was sufficient, if believed by the jury, to sustain a verdict against the landlord and the dentist jointly, the negligence of each being the proximate cause of the injury. Rucker & Sheely Co. v. Willey, 174 N.C. 42, 93 S.E. 379 (1917).

Cited in Rountree v. Thompson, 226 N.C. 553, 39 S.E.2d 523 (1946).

§ 42-11. Willful destruction by tenant misdemeanor.

If any tenant shall, during his term or after its expiration, willfully and unlawfully demolish, destroy, deface, injure or damage any tenement house, uninhabited house or other outhouse, belonging to his landlord or upon his premises by removing parts thereof or by burning, or in any other manner, or shall unlawfully and willfully burn, destroy, pull down, injure or remove any fence, wall or other inclosure or any part thereof, built or standing upon the premises of such landlord, or shall willfully and unlawfully cut down or destroy any timber, fruit, shade or ornamental tree belonging to said landlord, he shall be guilty of a Class 1 misdemeanor.

History

(1883, c. 224; Code, s. 1761; Rev., s. 3686; C.S., s. 2351; 1993, c. 539, s. 402; 1994, Ex. Sess., c. 24, s. 14(c).)

Cross References. - As to larceny of ungathered crops, see G.S. 14-78.

As to burning or destroying crops, see G.S. 14-141.

For provisions applicable to landlord and tenant relations in certain counties, see G.S. 14-358, 14-359.

Legal Periodicals. - For article, "Legislative Kudzu and the New Millennium: An Opportunity for Reflection and Reform," see 23 Campbell L. Rev. 157 (2001).

CASE NOTES

For meaning of "tenement house," "uninhabited house" and "outhouse," as used in this section, see State v. Rowland Lumber Co., 153 N.C. 610, 69 S.E. 58 (1910).

Meaning of "Willful". - The word "willful," as used in this section, means something more than an intention to do a thing. It implies the doing of the act purposely and deliberately, indicating a purpose to do it, without authority, careless whether one has the right or not, in violation of law; and it is this which makes the criminal intent, without which one cannot be brought within the meaning of a criminal statute. State v. Whitener, 93 N.C. 590 (1885).

If the defendants reasonably and bona fide believe that they have the right to remove the buildings, etc., they are not guilty of removing them "willfully" so as to bring their act within the meaning of this section. State v. Rowland Lumber Co., 153 N.C. 610, 69 S.E. 58 (1910).

Right to Remove Certain Fixtures. - It is intimated that a tenant who is going away has the right to remove fixtures put on the premises by himself for his own convenience. State v. Whitener, 93 N.C. 590 (1885), approved in State v. Morgan, 136 N.C. 628, 48 S.E. 670 (1904).

Liability of Corporation. - A corporation is indictable for the acts of its officers and agents under this section. State v. Rowland Lumber Co., 153 N.C. 610, 69 S.E. 58 (1910).

Indictment. - An indictment charging the defendant with burning a dwelling house occupied by him "as lessee" falls within this section. State v. Graham, 121 N.C. 623, 28 S.E. 409 (1897).

Burden of Proof. - In an indictment under this section the burden of proof is upon the State to establish, first, that the relation of landlord and tenant existed, and, second, that during the tenant's term or after its expiration he did willfully and unlawfully injure the tenement house. State v. Godwin, 138 N.C. 582, 50 S.E. 277 (1905).

Admissibility of Evidence. - In the trial of an indictment for burning a dwelling house occupied by the defendant as lessee, evidence that the defendant at a prior time was guilty of a similar offense is inadmissible. State v. Graham, 121 N.C. 623, 28 S.E. 409 (1897).

Cited in Homeland, Inc. v. Backer, 78 N.C. App. 477, 337 S.E.2d 114 (1985).

§ 42-12. Lessee may surrender, where building destroyed or damaged.

If a demised house, or other building, is destroyed during the term, or so much damaged that it cannot be made reasonably fit for the purpose for which it was hired, except at an expense exceeding one year's rent of the premises, and the damage or destruction occur without negligence on the part of the lessee or his agents or servants, and there is no agreement in the lease respecting repairs, or providing for such a case, and the use of the house damaged or destroyed was the main inducement to the hiring, the lessee may surrender his estate in the demised premises by a writing to that effect delivered or tendered to the landlord within 10 days from the damage or destruction, and by paying or tendering at the same time all rent in arrear, and a part of the rent growing due at the time of the damage or destruction, proportionate to the time between the last period of payment and the occurrence of the damage or destruction, and the lessee shall be thenceforth discharged from all rent accruing afterwards; but not from any other agreement in the lease. This section shall not apply if a contrary intention appear from the lease.

History

(1868-9, c. 156, s. 12; Code, s. 1753; Rev., s. 1992; C.S., s. 2352.)

CASE NOTES

Applicability When Lessee Insists on Rights. - The modification of the common-law liability of the lessee of a building, etc., to pay the rent, when the building was accidentally destroyed, etc., during the term of his lease, by this section, under certain conditions, is to some extent a legislative recognition that without its provisions the principles of the common law would prevail; and neither the statute, being for the benefit of the lessee, nor the common-law principle, has application when the lessee is insisting on certain rights arising to him under the provisions of the lease. Miles v. Walker, 179 N.C. 479, 102 S.E. 884 (1920).

For case in which this section was not applicable, see Chambers v. North River Line, 179 N.C. 199, 102 S.E. 198 (1920).

Where the terms of a lease fully provide for the rights of the parties upon destruction of the property by a fire, such rights will be determined in accordance with the written agreement, without reference to this section. Grant v. Borden, 204 N.C. 415, 168 S.E. 492 (1933).

For case in which damage was held insufficient to enable lessee to surrender premises, see Carolina Mtg. Co. v. Massie, 209 N.C. 146, 183 S.E. 425 (1936).

Repairs by Lessor Within Reasonable Time. - Where the controversy was made to depend upon whether the damage to the leased premises had been repaired by the lessor within a reasonable time when the extent of the damage was insufficient to terminate the lease under its written terms, evidence that three days had elapsed between the time the lessor and lessee had agreed upon the necessary repairs and the time the repairs were made was sufficient to sustain an affirmative verdict that they were made in a reasonable time. Archibald v. Swaringen, 192 N.C. 756, 135 S.E. 849 (1926).

Where a swimming pool was leased for a year, under a written contract that the lease would terminate upon the pool becoming unfit for use, it was held that a crack in the walls thereof by which the pool was drained of water, which was repaired by the lessor at an inappreciable sum, was not sufficient to give the lessee the right to cancel the lease when the repair was made under a parol agreement within a reasonable time. Archibald v. Swaringen, 192 N.C. 756, 135 S.E. 849 (1926).

Time Allowed Lessee for Repairs. - Where a monthly rental to be paid by the lessee of a building, and an obligation to make certain repairs by him, are specified as the consideration for the lease, with forfeiture of the lease upon the nonpayment of the rent at stated times, the lessee's liability to repair and to pay rent are, as a rule, distinct and independent obligations, and the law will imply that the lessee be given a reasonable time in which to make the repairs if no time is stated in the lease. Miles v. Walker, 179 N.C. 479, 102 S.E. 884 (1920).

Applicability of Lease to Building Restored by Landlord. - Though the landlord may be under no implied obligation to restore or repair a building which has been destroyed, etc., if he does enter and make the required repairs without further agreement on the subject, the building so rebuilt or restored will come under the provisions of the lease as far as the same may be applied, and for a breach the landlord may be held responsible. Miles v. Walker, 179 N.C. 479, 102 S.E. 884 (1920).

§ 42-13. Wrongful surrender to other than landlord misdemeanor.

Any tenant or lessee of lands who shall willfully, wrongfully and with intent to defraud the landlord or lessor, give up the possession of the rented or leased premises to any person other than his landlord or lessor, shall be guilty of a Class 1 misdemeanor.

History

(1883, c. 138; Code, s. 1760; Rev., s. 3682; C.S., s. 2353; 1993, c. 539, s. 403; 1994, Ex. Sess., c. 24, s. 14(c).)

Legal Periodicals. - For article, "Legislative Kudzu and the New Millennium: An Opportunity for Reflection and Reform," see 23 Campbell L. Rev. 157 (2001).

§ 42-14. Notice to quit in certain tenancies.

A tenancy from year to year may be terminated by a notice to quit given one month or more before the end of the current year of the tenancy; a tenancy from month to month by a like notice of seven days; a tenancy from week to week, of two days. Provided, however, where the tenancy involves only the rental of a space for a manufactured home as defined in G.S. 143-143.9(6), a notice to quit must be given at least 60 days before the end of the current rental period, regardless of the term of the tenancy.

History

(1868-9, c. 156, s. 9; Code, s. 1750; 1891, c. 227; Rev., s. 1984; C.S., s. 2354; 1985, c. 541; 2005-291, s. 1.)

Local Modification. - Forsyth: 1935, c. 119; Halifax: 1935, c. 22; Hertford: 1939, c. 367; Montgomery: 1925, c. 196, s. 2; Perquimans: 1935, c. 472; Pitt: 1925, c. 196, s. 2; Randolph: 1925, c. 196, s. 2; Wake: 1931, c. 20.

Effect of Amendments. - Session Laws 2005-291, s. 1, effective January 1, 2006, and applicable to all notices to quit given on or after that date, substituted "60" for "30" in the last sentence.

Legal Periodicals. - For note, "When A Hotel Is Your Home, Is There Protection?," see 15 Campbell L. Rev. 295 (1993).

For comment, "Additional Time to Move Is Not the Issue with Mobile Homes: Why North Carolina Needs Statutory Reform to Provide the Mobile Home Owner-Tenant with Adequate Security of Tenure and Security of Investment," see 92 N.C. L. Rev. 591 (2014).

CASE NOTES

A tenant from year to year is entitled to a written or verbal notice to quit, and a mere demand for possession is insufficient. Vincent v. Corbin, 85 N.C. 108 (1881).

A landlord has no right to dispossess his tenant from year to year, without first giving the statutory notice, where the tenant acknowledges the tenancy, sets up no adverse claim or other defense, and relies upon the want of legal notice. Fayetteville Waterworks Co. v. Tillinghast, 119 N.C. 343, 25 S.E. 960 (1896).

Verbal Notice Is Sufficient. - A verbal notice by landlord to tenant is sufficient. Poindexter v. Call, 182 N.C. 366, 109 S.E. 26 (1921).

Effect of Failure to Provide Notice. - Generally, the effect of failure to provide notice when it is required under this section is that the parties are bound to a new term. The rule applies to agricultural tenancies, even those for fixed one-year terms under G.S. 42-23. Lewis v. Lewis Nursery, Inc., 80 N.C. App. 246, 342 S.E.2d 45, cert. denied, 317 N.C. 704, 347 S.E.2d 43 (1986).

Insufficient Notice. - In an action in summary ejectment under G.S. 42-26, proof of notice given the 14th of the month to quit the premises on or before the first of the following month was insufficient to show the statutory notice terminating the term, when it appeared that the original occupancy was taken on the 18th of the month and plaintiff offered no evidence as to the date of the month the term began or when the monthly rentals became due. Stafford v. Yale, 228 N.C. 220, 44 S.E.2d 872 (1947).

Where on May 18, 1897, a landlord gave a tenant from month to month notice "to get out within 30 days," and the landlord had received the rent for May, it was held that such notice was invalid as to May, as the rent had been paid, and as to June, because not ending with the month. Simmons v. Jarman, 122 N.C. 195, 29 S.E. 332 (1898).

Tenant at Will Not Entitled to Notice. - Where a person is put in possession of land by the owner, without any agreement for rent, and with an express provision that he shall leave it whenever the owner may require him to do so, he is not a tenant from year to year, but is strictly a tenant at will, and is not entitled to notice to quit as provided in this section. Humphries v. Humphries, 25 N.C. 362 (1843).

Election of Lessor When Tenant Holds Over. - In the absence of a provision in the lease for an extension of the term, when a tenant under a lease for a fixed term of one year or more holds over after the end of the term the lessor may eject him or recognize him as a tenant. Kearney v. Hare, 265 N.C. 570, 144 S.E.2d 636 (1965).

Nothing else appearing, when a tenant for a fixed term of one year or more holds over after the expiration of such term, the lessor has an election. He may treat him as a trespasser and bring an action to evict him and to recover reasonable compensation for the use of the property, or he may recognize him as still a tenant, having the same rights and duties as under the original lease, except that the tenancy is one from year to year and is terminable by either party upon giving to the other 30 days' notice directed to the end of any year of such new tenancy. Coulter v. Capitol Fin. Co., 266 N.C. 214, 146 S.E.2d 97 (1966).

Term and Rights of Tenant Who Holds Over and Is Recognized. - The fact that a tenant who entered into the occupation of premises under an express lease from month to month continued the occupation for more than two years did not entitle him to one month's notice to quit. Jones v. Willis, 53 N.C. 430 (1862).

It was not error to charge the jury that if tenant leased premises at $5.00 per month and had held over several months, paying the same rent without any new agreement, he was a tenant from month to month, and entitled to 14 days' (now seven days') notice to quit. Branton v. O'Briant, 93 N.C. 99 (1885).

When a tenant for a year or longer time holds over and is recognized by the landlord without further agreement or other qualifying facts or circumstances, he becomes a tenant from year to year, and is subject to the payment of the rent and other stipulations of the lease as far as the same may be applied to existing conditions. Stedman v. McIntosh, 26 N.C. 291 (1844); Scheelky v. Koch, 119 N.C. 80, 25 S.E. 713 (1896); Harty v. Harris, 120 N.C. 408, 27 S.E. 90 (1897); Holton v. Andrews, 151 N.C. 340, 66 S.E. 212 (1909); Murrill v. Palmer, 164 N.C. 50, 80 S.E. 55 (1913).

If the lessor elects to treat as a tenant one holding over after the end of the term of a lease for one year or more, a new tenancy relationship is created as of the end of the former term. This is, by presumption of law, a tenancy from year to year, the terms of which are the same as those of the former lease insofar as they are applicable, in the absence of a new contract between them or of other circumstances rebutting such presumption. Such a tenancy may be terminated by either party at the end of any year thereof by giving notice of intent so to terminate 30 days before the end of such year. Kearney v. Hare, 265 N.C. 570, 144 S.E.2d 636 (1965).

Special Agreement When Tenant Holds Over. - It is competent to rebut the presumption that a tenant who holds over is a tenant from year to year by proof of a special agreement. Harty v. Harris, 120 N.C. 408, 27 S.E. 90 (1897).

Where a tenancy is from year to year, and, after the commencement of a year, there is an express lease for a certain time and an agreement to quit at the end of that time, no notice is necessary in order to terminate the tenancy after such time. Williams v. Bennett, 26 N.C. 122 (1843).

Where a lease for an original term of 36 months provided that "should the lessee remain in possession of the leased premises beyond the expiration of the original term or any renewal or extension of this lease, which shall result in a tenancy from month to month, this lease may be terminated by either party upon the giving of thirty (30) days' written notice to the other party," the purpose of the clause was held to have been to provide that in such circumstances the tenancy would be from month to month, and so terminable by either party at the end of any month, but only upon 30 days' notice rather than upon the seven days' notice which would otherwise be sufficient to terminate a month to month tenancy under this section. Coulter v. Capitol Fin. Co., 266 N.C. 214, 146 S.E.2d 97 (1966).

Different Agreement as to Termination Not Prohibited. - This section does not preclude the parties from making a different agreement as to notice of intention to terminate tenancy. Cherry v. Whitehurst, 216 N.C. 340, 4 S.E.2d 900 (1939).

Effect of Leaving Premises After Waiver of Notice. - A tenant from year to year who waives his right to notice to quit and goes out of possession has no right to go back on the premises. Torrans v. Stricklin, 52 N.C. 50 (1859).

Where one occupied land as his own and refused to quit when possession was demanded, it was held that he could not afterwards insist upon the statutory notice. Head v. Head, 52 N.C. 620 (1860).

Termination of Lease Valid. - Trial court correctly granted summary judgment in favor of a lessor in its summary ejectment action under G.S. 42-26(a) because the lessee's affidavits failed to create a genuine issue of material fact regarding the validity of the lessor's termination of the lease since there was no genuine issue of material fact that the lessor's president was acting in at least a de facto capacity as president when she terminated the lease or that the lessor, as a corporation, had an officer with the title of president; in her affidavit, the president averred that she was validly elected by the lessor's members and was acting in that capacity when she terminated the lease. Havelock Yacht Club, Inc. v. Crystal Lake Yacht Club, Inc., 215 N.C. App. 153, 714 S.E.2d 788 (2011).

Applied in Cla-Mar Mgt. v. Harris, 76 N.C. App. 300, 332 S.E.2d 495 (1985).

Cited in Goler Metro. Apts., Inc. v. Williams, 43 N.C. App. 648, 260 S.E.2d 146 (1979); Kent v. Humphries, 50 N.C. App. 580, 275 S.E.2d 176 (1981); Stanley v. Harvey, 90 N.C. App. 535, 369 S.E.2d 382 (1988).

§ 42-14.1. Rent control.

No county or city as defined by G.S. 160A-1 may enact, maintain, or enforce any ordinance or resolution which regulates the amount of rent to be charged for privately owned, single-family or multiple unit residential or commercial rental property. This section shall not be construed as prohibiting any county or city, or any authority created by a county or city for that purpose, from:

Regulating in any way property belonging to that city, county, or authority;
Entering into agreements with private persons which regulate the amount of rent charged for subsidized rental properties; or
Enacting ordinances or resolutions restricting rent for properties assisted with Community Development Block Grant Funds.

History

(1987, c. 458, s. 1.)

§ 42-14.2. Death, illness, or conviction of certain crimes not a material fact.

In offering real property for rent or lease it shall not be deemed a material fact that the real property was occupied previously by a person who died or had a serious illness while occupying the property or that a person convicted of any crime for which registration is required by Article 27A of Chapter 14 of the General Statutes occupies, occupied, or resides near the property; provided, however, that no landlord or lessor may knowingly make a false statement regarding any such fact.

History

(1989, c. 592, s. 2; 1998-212, s. 17.16A(b).)

§ 42-14.3. Notice of conversion of manufactured home communities.

In the event that an owner of a manufactured home community (defined as a parcel of land, whether undivided or subdivided, that has been designed to accommodate at least five manufactured homes) intends to convert the manufactured home community, or any part thereof, to another use that will require movement of the manufactured homes, the owner of the manufactured home community shall give each owner of a manufactured home and the North Carolina Housing Finance Agency notice of the intended conversion at least 180 days before the owner of a manufactured home is required to vacate and move the manufactured home, regardless of the term of the tenancy. Failure to give notice to each manufactured home owner as required by this section is a defense in an action for possession. The respective rights and obligations of the community owner and the owner of the manufactured home under their lease shall continue in effect during the notice period.
Notwithstanding subsection (a) of this section, if a manufactured home community is being closed pursuant to a valid order of any unit of State or local government, the owner of the community shall be required to give notice of the closure of the community to each resident of the community and the North Carolina Housing Finance Agency within three business days of the date on which the order is issued.

History

(2003-400, s. 5; 2008-107, s. 28.27(c).)

Effect of Amendments. - Session Laws 2008-107, s. 28.27(c), effective July 16, 2008, in subsection (a), inserted "and the North Carolina Housing Finance Agency" in the first sentence, and inserted "to each manufactured home owner" near the beginning of the second sentence; and inserted "and the North Carolina Housing Finance Agency" near the end of subsection (b).

§ 42-14.4. Notice to State Bar of attorney default on lease.

If a landlord has actual knowledge that a tenant is an attorney, the landlord shall deliver notice to the North Carolina State Bar (hereinafter "State Bar") at least 15 days prior to the destruction or discard of any "potentially confidential materials" remaining in the premises after the landlord obtains possession of the premises, whether by summary ejectment under Article 3 of this Chapter or by any other means, including the tenant vacating the premises. For purposes of this section, the term "potentially confidential materials" means client files, trust or operating account records, or other materials relating to client matters. For purposes of this section, the term "landlord" means any owner and any rental management company, rental agency, or any other person having the actual or apparent authority of an agent to perform the duties imposed by this Article. The landlord's notice to the State Bar shall contain the name of the attorney who is presumed to be the tenant, the location of the potentially confidential materials, and a phone number, address, or other means to contact the landlord. During the 15-day period after notice, a landlord may move for storage purposes, but shall not throw away, dispose of, or sell, potentially confidential materials remaining in the premises.
The State Bar or its designee may take possession of the materials, at its sole expense, within the 15-day period provided for in subsection (a) of this section without the necessity of a court order. Upon the request of the State Bar, the landlord shall cooperate with and allow the State Bar to take possession of the potentially confidential materials, and the landlord shall not be liable in any way to the tenant for his or her cooperation. However, if the tenant elects to take possession of the potentially confidential materials prior to the State Bar obtaining possession of them, and there is no court order to the contrary having been previously delivered to the landlord, the landlord may deliver possession of the potentially confidential materials to the tenant and shall promptly notify the State Bar of his or her actions. If neither the State Bar nor its designee takes possession of the potentially confidential materials within the 15-day period provided for in subsection (a) of this section, the landlord may destroy or discard the materials in accordance with the lease agreement with the defaulting tenant.
A landlord that attempts in good faith to comply with the requirements of this section shall not be liable for losses to any person arising directly or indirectly out of the disposal of any potentially confidential materials. Failure to comply with this section shall not constitute an unfair trade practice under G.S. 75-1.1.

History

(2012-76, s. 1.)

§ 42-14.5. Foreseeability not created by criminal record; no duty to screen.

Notwithstanding any other duty or obligation which may be defined by this Chapter or otherwise provided by law or any theory of liability, the criminal record of any prospective or current residential lessee, occupant, or guest shall not make any future injury or damage arising from that residential lessee, occupant, or guest foreseeable by the residential lessor or residential lessor's agent, nor shall a residential lessor or a residential lessor's agent have a duty to screen for, or to refuse to rent because of, the criminal record of a prospective or current residential lessee, occupant, or guest. This statute does not prohibit a residential lessor or residential lessor's agent from using a criminal background check as grounds for refusing to rent to any prospective residential lessee or current lessee.

History

(2021-71, s. 2.1.)

Editor's Note. - Session Laws 2021-71, s. 2.6, made this section, as added by Session Laws 2021-71, s. 2.1, effective July 2, 2021.

ARTICLE 2. Agricultural Tenancies.

Sec.

§ 42-15. Landlord's lien on crops for rents, advances, etc.; enforcement.

When lands are rented or leased by agreement, written or oral, for agricultural purposes, or are cultivated by a cropper, unless otherwise agreed between the parties to the lease or agreement, any and all crops raised on said lands shall be deemed and held to be vested in possession of the lessor or his assigns at all times, until the rents for said lands are paid and until all the stipulations contained in the lease or agreement are performed, or damages in lieu thereof paid to the lessor or his assigns, and until said party or his assigns is paid for all advancements made and expenses incurred in making and saving said crops.

This lien shall be preferred to all other liens, and the lessor or his assigns is entitled, against the lessee or cropper, or the assigns of either, who removes the crop or any part thereof from the lands without the consent of the lessor or his assigns, or against any other person who may get possession of said crop or any part thereof, to the remedies given in an action upon a claim for the delivery of personal property.

Provided, that when advances have been made by the federal government or any of its agencies, to any tenant or tenants on lands under the control of any guardian, executor and/or administrator for the purpose of enabling said tenant or tenants to plant, cultivate and harvest crops grown on said land, the said guardian, executor, and/or administrator may waive the above lien in favor of the federal government, or any of its agencies, making said advances.

History

(1876-7, c. 283; Code, s. 1754; Rev., s. 1993; 1917, c. 134; C.S., s. 2355; 1933, c. 219; 1985, c. 689, s. 11.)

Legal Periodicals. - For article discussing effect of landlord's lien upon cooperative marketing, see 2 N.C.L. Rev. 188 (1924).

For summary of the 1933 amendment, see 11 N.C.L. Rev. 265 (1933).

For article on agricultural tenancies in the southeastern states, see 26 N.C.L. Rev. 274 (1948).

For article concerning liens on personal property not governed by the Uniform Commercial Code, see 44 N.C.L. Rev. 322 (1966).

For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).

For article, "Estate Planning for Farmers after the Reform Act of 1976," see 14 Wake Forest L. Rev. 577 (1978).

I. IN GENERAL.

The lien under this section is acquired automatically by virtue of the landlord's status, and no writing or recordation is required in order to establish the lien. Rivenbark v. Moore, 57 N.C. App. 339, 291 S.E.2d 293 (1982).

This section makes a judgment for rent a lien on the crop. Hargrove v. Harris, 116 N.C. 418, 21 S.E. 916 (1895).

Lien Hereunder Is Exclusive. - The only statutory landlord's lien in this jurisdiction is that provided for by this section. Dunham's Music House, Inc. v. Asheville Theatres, Inc., 10 N.C. App. 242, 178 S.E.2d 124 (1970).

No Right of Distress. - A landlord's right of distress as a security for the payment of rent available under English common law has never existed in North Carolina. Dunham's Music House, Inc. v. Asheville Theatres, Inc., 10 N.C. App. 242, 178 S.E.2d 124 (1970).

The common-law remedy of lessors by distress does not obtain in this State; and except as specifically given by statute, a landlord has no lien on the product of the leased property for rent. Howland v. Forlaw, 108 N.C. 567, 13 S.E. 173 (1891); Reynolds v. Taylor, 144 N.C. 165, 56 S.E. 871 (1907).

Lien Applies Only to Leases for Agricultural Purposes. - This statutory lien is only given when lands are rented or leased for agricultural purposes. Reynolds v. Taylor, 144 N.C. 165, 56 S.E. 871 (1907).

Except in the case of landlord and tenant provided for specifically by this section, the lessor has no lien upon the product of the leased property as rent; it is for all purposes, until division, deemed vested in the tenant, and his sale to a third person before the rent is ascertained and set apart conveys a good title. Howland v. Forlaw, 108 N.C. 567, 13 S.E. 173 (1891).

The words "crops raised" mean simply the crops grown or gathered during the year. The word "raised" appears nowhere else in the section, nor in succeeding section; only the word "crops" is used. The legislature had in mind no distinction between fructus industriales (products obtained by labor and cultivation) and fructus naturales (products which emanate from the power of nature alone), and there was no need of any. State v. Crook, 132 N.C. 1053, 44 S.E. 32 (1903).

Hay is ordinarily embraced in the word "crop," as used in this section. But not, it seems, when it is merely a spontaneous growth, such as crabgrass, which springs up after another crop is housed. State v. Crook, 132 N.C. 1053, 44 S.E. 32 (1903).

What Constitutes One a Cropper. - An agreement by him who cultivates land that the owner who advances guano, seed wheat, etc., shall out of the crop be repaid in wheat for such advancements, constitutes the former a cropper, and not a tenant. State v. Burwell, 63 N.C. 661 (1869).

A cropper has no estate in the land, and his possession is that of the landlord. State v. Austin, 123 N.C. 749, 31 S.E. 731 (1898).

Lien Covers All Crops of the Season. - This section gives the landlord a lien for his rent "on any and all crops," that is, on all that is "cropped, cut or gathered" in that season from his land. State v. Crook, 132 N.C. 1053, 44 S.E. 32 (1903).

Lien Does Not Cover Crops of Subsequent Years. - The operation of a mortgage or agricultural lien in respect to crops is confined to crops then or about to be planted, and will not be extended further than those planted next after the execution of the instrument. Wooten v. Hill, 98 N.C. 48, 3 S.E. 846 (1887).

The landlord's lien under this section does not attach to a crop made entirely in a year subsequent to that in which the advancements are furnished to the tenant. Brooks v. Garrett, 195 N.C. 452, 142 S.E. 486 (1928).

Antecedent Debts Not Included. - It was not intended to confer a lien upon the landlord for antecedent debts which the lessee might stipulate to pay, and give them a preference over the agricultural lienee, whose money and supplies materially assisted in the production of the crops. This view is assumed to be correct in Thigpen v. Maget, 107 N.C. 39, 12 S.E. 272 (1890) and is undoubtedly in harmony with the policy of the law in securing the landlord his rent, and at the same time enabling the tenant to obtain advances from third parties. Ballard v. Johnson, 114 N.C. 141, 19 S.E. 98 (1894).

No Priority for Antecedent Debts. - Although under this section and former G.S. 44-52 and G.S. 44-60 the lien of a landlord for rent and advances is superior to that of a third party making advances to the tenant, yet such priority exists only for rent accruing or advances made during the year in which the crops are grown, and not for a balance due for an antecedent year. Ballard v. Johnson, 114 N.C. 141, 19 S.E. 98 (1894).

Lien Does Not Attach to Proceeds of Hail Insurance Policy. - Where a tenant procures and pays for a policy of hail storm insurance, nothing else appearing, the landlord's statutory crop lien for advancements under this section does not extend to the fund paid by insurer under the policy after damage to the crop by the risk covered. Peoples v. United States Fire Ins. Co., 248 N.C. 303, 103 S.E.2d 381 (1958).

Lien of Assignee. - The assignee of a note given by a tenant for rent has a landlord's lien on the crop. Avera v. McNeill, 77 N.C. 50 (1877).

The assignee of a landlord's lien for rent is the owner of the crops raised to the extent of cash rent due and is entitled thereto as against tenant and third-party holder of note for rent. Rhodes v. Smith-Douglass Fertilizer Co., 220 N.C. 21, 16 S.E.2d 408 (1941).

Where the occupant of land is a vendee or mortgagor in default, although he may for some purposes be considered a tenant at will, he is not a lessee whose crop, under the provisions of this section, is vested in the landlord. Taylor v. Taylor, 112 N.C. 27, 16 S.E. 924 (1893).

Lien Conferred upon Mortgagee by Agreement. - An agreement after default, between mortgagor and mortgagee, that the mortgagor was to remain in possession as tenant, would confer a landlord's lien upon the mortgagee. Cooper v. Kimbell, 123 N.C. 120, 31 S.E. 346 (1898).

Lien Conferred by Contract on Vendor After Default. - After default by a vendee of land to pay the purchase money, the vendor may by contract become landlord of the vendee so as to avail himself of the landlord's lien given by this section. Jones v. Jones, 117 N.C. 254, 23 S.E. 214 (1895); Ford v. Green, 121 N.C. 70, 28 S.E. 132 (1897).

Agreements Between Tenants in Common. - Where A and B, tenants in common, agreed to make partition of lands and fix the boundaries, and A agreed that B should occupy the whole and pay to him a portion of the crop raised thereon, it was held that although this was valid as an agreement for a year, it did not constitute a lease, so as to create the relation of landlord and tenant between the parties. Medlin v. Steele, 75 N.C. 154 (1876).

When Lessee Has Lien. - When a lessee sublets a part of the farm he becomes a lessor to his sublessee and is entitled to the same lien on his crop which the statute gives a lessor. Moore v. Faison, 97 N.C. 322, 2 S.E. 169 (1887). See also, Perry v. Perry, 127 N.C. 23, 37 S.E. 71 (1900).

Effect of Subletting. - The landlord's right to the crop to secure payment of rent is not impaired by the subletting of his tenant. The subtenant's crop may thereby be subjected to a double lien, that of the landlord and that of his immediate lessor, but the lien of the landlord is paramount. Montague v. Mial, 89 N.C. 137 (1883); Moore v. Faison, 97 N.C. 322, 2 S.E. 169 (1887); State v. Crook, 132 N.C. 1053, 44 S.E. 32 (1903).

Priority of Landlord's Lien. - The landlord's lien is made superior to all other liens. Ledbetter v. Quick, 90 N.C. 276 (1884); Wooten v. Hill, 98 N.C. 48, 3 S.E. 846 (1887); Brewer v. Chappell, 101 N.C. 251, 7 S.E. 670 (1888), overruled insofar as inconsistent, Killebrew v. Hines, 104 N.C. 182, 10 S.E. 162 (1889); Reynolds v. Taylor, 144 N.C. 165, 56 S.E. 871 (1907); Rhodes v. Smith-Douglass Fertilizer Co., 220 N.C. 21, 16 S.E.2d 408 (1941).

Under this section, a landlord has a preferred lien on the entire crop until the rent and all advancements made and expenses incurred in making and saving the crop are paid. Eason v. Dew, 244 N.C. 571, 94 S.E.2d 603 (1956).

Landlord's Priority in Bankruptcy Proceedings. - Although landlord's claim for rent of 250 acres pursuant to the statutory landlord's lien of this section would be denied, since the bankruptcy trustee could properly avoid that lien pursuant to 11 U.S.C. § 545(3), the landlord had an administrative expense priority claim for rent in the amount of $12,073.39 pursuant to 11 U.S.C. § 364(a) and 503(b)(1). In re Harrell, 55 Bankr. 203 (Bankr. E.D.N.C. 1985).

Where Lien Has Been Extinguished, Bankruptcy Avoidance Power Is Inapplicable. - Chapter 12 debtors could not avoid statutory landlord's lien for rent arising pursuant to North Carolina law because statutory lien on debtors' corn crop was extinguished when rent obligations under lease were paid in full seven months pre-petition, thus rendering 11 U.S.C.S. § 545(3) inapplicable. Godley v. Open Grounds Farm, Inc. (In re Godley), 505 B.R. 192 (Bankr. E.D.N.C. 2014).

Subtenant's Lien for Labor. - Landlord's lien for rent and advancements held superior to subtenant's lien for labor under separate contract with tenant. Eason v. Dew, 244 N.C. 571, 94 S.E.2d 603 (1956).

The landlord's lien may be enforced as against purchaser of the crop. Burwell v. Coopers Coop. Whse. Co., 172 N.C. 79, 89 S.E. 1064 (1916).

This section gives a landlord the title to the crop until the rent is actually paid (whether the claim be reduced to a judgment or not), and such title is not impaired by the fact that the tenant conveys the crop to a third person, who takes without notice of the landlord's claim. The rule caveat emptor applies. Belcher v. Grimsley, 88 N.C. 88 (1883).

The tenant, who owns the crop subject to the landlord's rights and lien, has the right to sell the crop, but in the same plight in which he holds it, that is, the purchaser from the tenant takes subject to the landlord's lien, and where the crop remains on the land, the purchaser can remove the crop only by consent of the landlord until the rent is paid. Hall v. Odom, 240 N.C. 66, 81 S.E.2d 129 (1954).

Third Party Charged with Notice. - Every person who makes advancements to a tenant or cropper of another does so with notice of the rights of the landlord, and with notice that any lien that he may have on the tenant's crop is preferred to all others, and the risk is his if the tenant does not satisfy the preferred lien by complying with the contract and all stipulations in regard thereto. Thigpen v. Leigh, 93 N.C. 47 (1885); Thigpen v. Maget, 107 N.C. 39, 12 S.E. 272 (1890). See also Eason v. Dew, 244 N.C. 571, 94 S.E.2d 603 (1956).

A purchaser or mortgagee of a crop takes with full knowledge that if advances shall be necessary to enable the cultivator to make the crop, and without which there would perhaps be no crop, such advances shall be a preferred lien upon the crop, made by reason of such advances, and this preference shall extend to "existing" liens. Wooten v. Hill, 98 N.C. 48, 3 S.E. 846 (1887).

The landlord's lien exists by virtue of this section. No written instrument is required or contemplated. The registration acts, which apply only to written instruments capable of registration, have no significance relative to a landlord's lien. This section itself gives notice to all the world of the law relative to a landlord's lien. Hall v. Odom, 240 N.C. 66, 81 S.E.2d 129 (1954).

The landlord's lien remains intact until the rent is paid, and all who deal with a tenant with reference to the crop are charged with notice thereof. Nothing short of an actual payment or a complete satisfaction of the lessor's demands meets the words of this section or will serve to determine his lien or title. Neither can the fact that purchasers of the crop had no notice of the landlord's claim at all impair it, in the absence of any suggestion of fraud on his part. It is a question of title, and the tenant can convey no better right to the property than he himself was possessed of. The principle of caveat emptor applies with full force to the case. Hall v. Odom, 240 N.C. 66, 81 S.E.2d 129 (1954).

A person who deals with the tenant is charged with notice of the landlord's rights under this section. Rivenbark v. Moore, 57 N.C. App. 339, 291 S.E.2d 293 (1982).

Action Against Tenant by Third Party. - In an action against a tenant to recover damages for his failure to deliver a crop under his contract of sale, the defense that the tenant had not settled with his landlord, and that the contract was therefore illegal, was not available when it was shown that the landlord had consented to the sale and had thereafter taken possession of the crop at the tenant's request. Lee v. Melton, 173 N.C. 704, 91 S.E. 697 (1917).

Liability of Landlord to Other Lienholders. - A landlord is liable to account to persons who have a lien for supplies furnished for the value of the crops in excess of his lien. Crinkley v. Egerton, 113 N.C. 142, 18 S.E. 341 (1893).

The landlord can expressly or impliedly waive the lien or by his acts and conduct be estopped from asserting the lien. Rivenbark v. Moore, 57 N.C. App. 339, 291 S.E.2d 293 (1982).

Pleading and Proof of Waiver. - It is not to be understood that a landlord cannot by agreement, express or implied, waive his lien, or by his acts and conduct be estopped from asserting his lien. The gist of such affirmative defense is allegation and proof of such facts and circumstances as will establish the proposition that the landlord in effect constituted the tenant his agent to sell the crop for their joint benefit and account to the landlord for his share out of the proceeds of sale. It is an affirmative defense which must be pleaded with certainty and particularity and established by the greater weight of the evidence. Hall v. Odom, 240 N.C. 66, 81 S.E.2d 129 (1954).

Landlord Estopped to Assert Claim. - Where a landlord who retained a lien on tobacco grown by his tenant gave his AAA marketing card to his tenant in order that he might sell the tobacco in a warehouse, the landlord clothed the tenant with authority or apparent authority to receive payment for the tobacco, and was estopped to assert a claim against the warehouse for the amount of his lien thereon. Adams v. Growers' Whse., Inc., 230 N.C. 704, 55 S.E.2d 331 (1949).

Uniform Commercial Code. - A lien on personal property granted a lessor by contract is not excluded from the provisions of the Uniform Commercial Code, G.S. 25-1-101 et seq. Dunham's Music House, Inc. v. Asheville Theatres, Inc., 10 N.C. App. 242, 178 S.E.2d 124 (1970).

Marketing of Tenant's Tobacco. - This section gives the landlord only a preferred lien on his tenant's crop on his rented lands for the payment of the rent; and unless and until the landlord has acquired a part of his tenant's crop for the rent, he has acquired no tobacco from his tenant that comes within the provisions of his membership contract in the Tobacco Growers Co-operative Association, and is not liable for the penalty therein contained for failure to market the tobacco raised by his tenant. Tobacco Growers Coop. Ass'n v. Bissett, 187 N.C. 180, 121 S.E. 446 (1924).

Applied in Sugg v. Parrish, 51 N.C. App. 630, 277 S.E.2d 557 (1981); Suggs v. Parrish, 303 N.C. 550, 281 S.E.2d 401 (1981).

Cited in Jennings v. Keel, 196 N.C. 675, 146 S.E. 716 (1929); Never Fail Land Co. v. Cole, 197 N.C. 452, 149 S.E. 585 (1929); Stanley v. Harvey, 90 N.C. App. 535, 369 S.E.2d 382 (1988).

II. POSSESSION AND TITLE TO CROP.

Title to Crops - Under Common-Law. - Before this section was passed, the title to the whole of the crop was, in contemplation of law, vested in the tenant (even where the parties had agreed upon the payment as rent of a certain portion of the crop) until a division had been made and the share of the landlord had been set apart to him in severalty. Deaver v. Rice, 20 N.C. 567 (1839); Gordon v. Armstrong, 27 N.C. 409 (1845); Ross v. Swaringer, 31 N.C. 481 (1849); Biggs v. Ferrell, 34 N.C. 1 (1851); Howland v. Forlaw, 108 N.C. 567, 13 S.E. 173 (1891).

Title to Crops - Under This Section. - All crops raised on the land, whether by tenant or cropper, are by this section deemed to be vested in the landlord, in the absence of an agreement to the contrary, until the rents and advancements are paid. Durham v. Speeke, 82 N.C. 87 (1880); Smith v. Tindall, 107 N.C. 88, 12 S.E. 121 (1890); State v. Austin, 123 N.C. 749, 31 S.E. 731 (1898); State v. Keith, 126 N.C. 1114, 36 S.E. 169 (1900); Batts v. Sullivan, 182 N.C. 129, 108 S.E. 511 (1921); Rhodes v. Smith-Douglass Fertilizer Co., 220 N.C. 21, 16 S.E.2d 408 (1941).

Possession in Lessor. - For the lessor's protection, as between him and the tenant, the possession of the crop is deemed vested in the lessor. State v. Higgins, 126 N.C. 1112, 36 S.E. 113 (1900).

Actual Possession Is in Tenant. - The whole tenor of this and the following sections contemplates the right of the lessee or cropper to hold the actual possession until such time as a division shall be made. State v. Copeland, 86 N.C. 691 (1882).

Though constructive possession of the crop is vested by statute in the landlord, yet, during the cultivation, and for all purposes of making and gathering the crop, the actual possession is in the tenant until the rent and advances become due or a division can be had. Jordan v. Bryan, 103 N.C. 59, 9 S.E. 135 (1889).

Tenant May Maintain Action for Inquiry Thereto. - As against third parties, the tenant is entitled to the possession both of the land and crop while it is being cultivated, and he may maintain an action in his own name for any injury thereto. Bridgers v. Dill, 97 N.C. 222, 1 S.E. 767 (1887). See also, State v. Higgins, 126 N.C. 1112, 36 S.E. 113 (1900).

Tenant Has Insurable Interest. - The fact that the possession and title to the crop are deemed vested in the landlord does not divest the tenant of an insurable interest in the crops before division. Batts v. Sullivan, 182 N.C. 129, 108 S.E. 511 (1921).

When Crop to Be Divided. - Unless otherwise provided by agreement, the crop should be divided from time to time, as considerable parts thereof shall be gathered, especially where the gathering of the whole is delayed for a considerable length of time. Smith v. Tindall, 107 N.C. 88, 12 S.E. 121 (1890).

Crop Left in Field. - A crop cultivated by a tenant and left standing in the field after the expiration of his term becomes the property of the landlord, and this is so, whether or not the tenant has assigned the crop. Sanders v. Ellington, 77 N.C. 255 (1877).

III. ADVANCEMENTS.

What Are "Advancements" - In General. - The "advancements" referred to in this section embrace anything of value supplied by the landlord to the tenant or cropper in good faith, directly or indirectly, for the purpose of making and saving the crop. Brown v. Brown, 109 N.C. 124, 13 S.E. 797 (1891).

Where a landlord either pays or becomes responsible for supplies to enable the tenant to make a crop, such supplies are advances. Powell v. Perry, 127 N.C. 22, 37 S.E. 71 (1900).

Supplies necessary to make and save a crop are such articles as are in good faith furnished to and received by the tenant for that purpose. Ledbetter v. Quick, 90 N.C. 276 (1884).

Supplies Necessary to Cultivation of Crop. - When advancements are of such things as in their nature are appropriate and necessary to the cultivation of the crop, e.g., farming implements and work animals, they will be presumed to create the lien; but where they are of articles not in themselves so appropriate and necessary, e.g., dry goods and groceries, whether they will constitute a lien depends upon the purpose for which they were furnished, and it must affirmatively appear that they were made in aid of the crop. Brown v. Brown, 109 N.C. 124, 13 S.E. 797 (1891).

What Are "Advancements" - Question for Jury. - It was proper in the court to leave it to the jury to find whether upon the evidence a mule and wagon, etc., were treated as advancements. Ledbetter v. Quick, 90 N.C. 276 (1884).

Fact that lessee diverts advancements from the purpose contemplated cannot change their nature and the purpose of them. Womble v. Leach, 83 N.C. 84 (1880); Ledbetter v. Quick, 90 N.C. 276 (1884); Brown v. Brown, 109 N.C. 124, 13 S.E. 797 (1891).

Where a landlord furnished advancements for the making of crops, the liens for the rent and for advancements were in equal degree, and attached, since the 1925 amendment of former G.S. 44-52, to the crops raised by the tenant on the same lands, planted during one calendar year and harvested in the next. Brooks v. Garrett, 195 N.C. 452, 142 S.E. 486 (1928).

Advancement of Cottonseed. - Where landlord advanced certain cottonseed, etc., to his tenant in 1884, and in 1885 and 1886 allowed his tenant to retain parts of the undivided cottonseed and crops by way of advancement, it was held that the plaintiff had a landlord's lien on such seed and crops. Thigpen v. Maget, 107 N.C. 39, 12 S.E. 272 (1890).

Where the landlord supplied the tenant and his family with board, to the end that he might make and save the crop, nothing to the contrary appearing, the reasonable value of such board would constitute an advancement within the meaning of this section. Brown v. Brown, 109 N.C. 124, 13 S.E. 797 (1891).

Collusion and Fraud in Creating "Advancements." - Where landlord and tenants undertake by collusion and fraud to create an indebtedness to the former, under color of "advancements," to the prejudice of creditors of the tenant, such a transaction will not be sustained. Ledbetter v. Quick, 90 N.C. 276 (1884).

Advances to Sublessee. - The original lessor, after his lessee has paid him in full, has no lien under the statute on the crop of his sublessee for advances made by him to the sublessee. Moore v. Faison, 97 N.C. 322, 2 S.E. 169 (1887).

Lien of Third Party for Advances. - The lien of a landlord takes precedence to that of a third party for advances, notwithstanding the priority of the latter in time. Spruill v. Arrington, 109 N.C. 192, 13 S.E. 779 (1891); Crinkley v. Egerton, 113 N.C. 444, 18 S.E. 669 (1893). See also, Wooten v. Hill, 98 N.C. 48, 3 S.E. 846 (1887); Wise Supply Co. v. Davis, 194 N.C. 328, 139 S.E. 599 (1927).

The statutory landlord's lien under this section was superior to that of one furnishing supplies to the cropper under former G.S. 44-52; but where the cropper under a separate contract with the landlord raised a certain crop, the lien for advancements attached to such crop, and where the landlord received payment for the entire crop including the special crop under separate contract with the cropper and paid himself the amount due as rent, the lien for advancements attached to the surplus and the holder of the lien could recover thereon from the landlord. Glover v. Dail, 199 N.C. 659, 155 S.E. 575 (1930).

A contract expressed and purporting to be a lease of lands for agricultural purposes does not change the relationship of landlord and tenant between the parties upon the ground that if the amount of stipulated rent should be paid at a certain time it should be regarded as a credit upon the purchase of the land at a stated price, it not appearing that the transaction of the contemplated purchase had been made under option given; and the landlord or one to whom the contract had been validly assigned could enforce his lien under this section in priority to the lien, under former G.S. 44-52, of one furnishing advancements for the cultivation of the crop. Wise Supply Co. v. Davis, 194 N.C. 328, 139 S.E. 599 (1927).

IV. REMEDY OF LESSOR.

Remedies for Unauthorized Removal of Crop by Tenant. - An attempt to appropriate and carry off the crop may be repelled by the landlord by force, provided no more force is used than is necessary to protect his possession. State v. Austin, 123 N.C. 749, 31 S.E. 731 (1898).

This section vests the possession of the crop in the landlord, and, under this right of possession, he has the right to use force, if necessary, to prevent unauthorized removal by the tenant. Moreover, if the tenant, without the consent of the landlord, willfully removes the crop without giving five days' notice of removal, before satisfying the landlord's lien, he is guilty of a misdemeanor under G.S. 42-22. In such case, the tenant is liable both civilly and criminally; for the constructive possession of the crop is in the landlord. Hall v. Odom, 240 N.C. 66, 81 S.E.2d 129 (1954).

The landlord may bring claim and delivery to recover possession of crops raised by the tenant or cropper, where his right of possession under this section is denied, or he may resort to any other appropriate remedy to enforce his lien for the rent due and the advances made. Livingston v. Farish, 89 N.C. 140 (1883).

When Action Lies. - The action will lie, not only where the crops are removed from the land leased, but also in a case where the tenant or cropper, or any other person, takes the crops into his absolute possession and denies the right of the landlord thereto. Livingston v. Farish, 89 N.C. 140 (1883).

The remedy of claim and delivery was designated for the landlord's protection, and it cannot, either by the terms of the statute or by any fair construction, be resorted to before the time fixed for division, unless the tenant is about to remove or dispose of the crop, or abandon a growing crop; otherwise, the tenant might be sued for parcel of the crop as it was gathered. Neither the language nor the spirit of the statute will permit this. Jordan v. Bryan, 103 N.C. 59, 9 S.E. 135 (1889).

Where, in a contract between the landlord and tenant, no time was fixed for division of the crop, the landlord was not obliged to wait until the whole crop had been gathered, but had a right to bring his action for the possession of the crop before it was fully harvested. Smith v. Tindall, 107 N.C. 88, 12 S.E. 121 (1890); Rich v. Hobson, 112 N.C. 79, 16 S.E. 931 (1893).

Action for Undivided Portion. - The lessor can maintain an action for recovery of an undivided portion of a crop, and it is not necessary that he shall specifically designate in his complaint or affidavit in claim and delivery such undivided part. Boone v. Darden, 109 N.C. 74, 13 S.E. 728 (1891).

Denial of Landlord's Title. - Where, in his answer in an action of claim and delivery, the defendant tenant denies that the crop for the possession of which the action is brought is vested in the plaintiff landlord, such denial avoids the necessity of proving a demand before the commencement of the action. Rich v. Hobson, 112 N.C. 79, 16 S.E. 931 (1893).

No Right to Personal Property Exemption. - The right to enforce the landlord's lien cannot be defeated by the lessee claiming the crop as a part of his personal property exemption. Durham v. Speeke, 82 N.C. 87 (1880).

The landlord's lien extends to and includes the costs of such legal proceedings as are necessary to recover his rents; and, as all the crops are his until such lien is duly discharged, the tenant has no property therein which he can claim as his constitutional exemption as against such costs. Slaughter v. Winfrey, 85 N.C. 159 (1881).

Liability of Warehouse Purchasing from Tenant or Selling as His Agent. - Nothing else appearing, if a warehouse purchased tobacco from a tenant, or sold the tobacco as agent for the tenant, and paid the tenant therefor, without regard to the landlord's lien, the warehouse would be accountable to the landlord on the basis of money had and received for the proceeds of sale up to the balance due as rent. Hall v. Odom, 240 N.C. 66, 81 S.E.2d 129 (1954).

Tenant's Liability. - If the tenant, at any time before satisfying the landlord's liens for rent and advances, removes the crop, or any part of it, he becomes liable civilly and criminally. Jordan v. Bryan, 103 N.C. 59, 9 S.E. 135 (1889).

§ 42-15.1. Landlord's lien on crop insurance for rents, advances, etc.; enforcement.

Where lands are rented or leased by agreement, written or oral, for agricultural purposes, or are cultivated by a cropper, unless otherwise agreed between the parties to the lease or agreement, the landlord or his assigns shall have a lien on all the insurance procured by the tenant or cropper on the crops raised on the lands leased or rented to the extent of any rents due or advances made to the tenant or cropper.

The lien provided herein shall be preferred to all other liens on said insurance, and the landlord or his assigns shall be entitled to all the remedies at law for the enforcement of the lien.

History

(1959, c. 1291; 1985, c. 689, s. 12.)

Legal Periodicals. - For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).

§ 42-16. Rights of tenants.

When the lessor or his assigns gets the actual possession of the crop or any part thereof otherwise than by the mode prescribed in G.S. 42-15, and refuses or neglects, upon a notice, written or oral, of five days, given by the lessee or cropper or the assigns of either, to make a fair division of said crop, or to pay over to such lessee or cropper or the assigns of either, such part thereof as he may be entitled to under the lease or agreement, then and in that case the lessee or cropper or the assigns of either is entitled to the remedies against the lessor or his assigns given in an action upon a claim for the delivery of personal property to recover such part of the crop as he, in law and according to the lease or agreement, may be entitled to. The amount or quantity of such crop claimed by said lessee or cropper or the assigns of either, together with a statement of the grounds upon which it is claimed, shall be fully set forth in an affidavit at the beginning of the action.

History

(1876-7, c. 283, s. 2; Code, s. 1755; Rev., s. 1994; C.S., s. 2356.)

Legal Periodicals. - For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).

CASE NOTES

Purpose of Section. - This section intends to encourage and favor the laborer as to those matters and things upon which his labor has been bestowed, so that he may reap the just benefit of his toil. Rouse v. Wooten, 104 N.C. 229, 10 S.E. 190 (1889).

Creation of Lien. - While one who labors in the cultivation of a crop, under a contract that he shall receive his compensation from the crop when matured and gathered, has no estate or interest in the land, but is simply a laborer - at most, a cropper - his right to receive his share is protected by this section, which for certain purposes creates a lien in his favor, which will be enforced against the employer or landlord or his assigns, and which has precedence over agricultural liens made subsequent to his contract, but before the crop is harvested. Rouse v. Wooten, 104 N.C. 229, 10 S.E. 190 (1889).

Seizure of Crop by Lessor. - The lessor has no right, when there is no agreement to that effect, to take actual possession from the lessee or cropper, and can never do so, except when he obtains the same by an action of claim and delivery, upon the removal of the crop by the lessee or cropper. State v. Copeland, 86 N.C. 691 (1882).

Where Lessor Seizes Too Much. - If a lessor seizes more than enough to satisfy his lien, and refuses to make a fair division of the crop, the lessee or cropper can compel him to do so in the manner prescribed in this section. Boone v. Darden, 109 N.C. 74, 13 S.E. 728 (1891).

Lessee Left to Civil Remedy. - When the lessee is wrongfully deprived of the actual possession of his crop by the lessor, he is left to his civil remedy under this section for the breach of trust, should the lessor refuse to account. State v. Keith, 126 N.C. 1114, 36 S.E. 169 (1900).

By Claim and Delivery. - Where a lessor gets possession of the crop by his own act, the remedy of the lessee to recover his part thereof is by claim and delivery. Wilson v. Respass, 86 N.C. 112 (1882).

Against Whom Action May Be Brought. - The action allowed to a cropper by this section is given against the lessor or employer, and also against any person to whom he may assign or sell the crop, or any interest therein, as, for example, the person who might have an "agricultural lien" upon it, acquired subsequently to the making of the contract with the cropper. Rouse v. Wooten, 104 N.C. 229, 10 S.E. 190 (1889).

When a cropper dies before harvesting his crop, his personal representatives are entitled to recover his share of the crop. Parker v. Brown, 136 N.C. 280, 48 S.E. 657 (1904).

Trover Held Improper. - Where a landlord took the crop into his sole possession, and refused to divide it when it was demanded, on the ground that the crop was not then in condition for a division, but he did not deny the tenant's right to a division, and while in his possession the crop was destroyed by fire, it was held that this did not amount to a conversion, and an action in the nature of trover could not be maintained. Shearin v. Riggsbee, 97 N.C. 216, 1 S.E. 770 (1887).

§ 42-17. Action to settle dispute between parties.

When any controversy arises between the parties, and neither party avails himself of the provisions of this Chapter, it is competent for either party to proceed at once to have the matter determined in the appropriate trial division of the General Court of Justice.

History

(1876-7, c. 283, s. 3; Code, s. 1756; Rev., s. 1995; C.S., s. 2357; 1971, c. 533, s. 1.)

CASE NOTES

Purpose. - The purpose of this section and G.S. 42-18 is to provide a summary mode for ascertaining a disputed liability, and, in case of delay, to secure the fruits of the judgment by requiring of the lessee, as a condition of his remaining in possession of the property, an adequate undertaking for the payment of what may be recovered. Deloatch v. Coman, 90 N.C. 186 (1884).

Nonpossessory Action Contemplated. - This section and the following section contemplate an action to determine a dispute growing out of the agreement, and the relative rights and obligations created by its stipulations, without disturbing the possession of the lessee, cropper or assignee of either, and this intent is very clearly expressed in the terms used in the enactment. It is a method of settling a controversy without resort to the possessory actions authorized in the antecedent sections. Wilson v. Respass, 86 N.C. 112 (1882).

Inapplicability Where Occupant Is Vendee or Mortgagor. - This and the following section, like G.S. 42-15, are plainly inapplicable where the occupant of the land is a vendee or mortgagor. Taylor v. Taylor, 112 N.C. 27, 16 S.E. 924 (1893).

As to jurisdiction prior to the 1971 amendment to this section, see Foster v. Penny, 76 N.C. 131 (1877); Deloatch v. Coman, 90 N.C. 186 (1884). See also, Montague v. Mial, 89 N.C. 137 (1883), as to tort actions.

Action by Tenant's Widow. - The widow of a tenant cultivating land on shares, after the crop is allotted to her in her year's support, may maintain an action for conversion against the landlord. She is not compelled to resort to the remedy prescribed by this section. She may pursue her remedy by a civil action to recover the value of the crops, subject to such deductions as the lessor is entitled to by reason of advancements, costs of housing, and such damage as he may have sustained by reason of the inability of the lessee to perform his contract. Parker v. Brown, 136 N.C. 280, 48 S.E. 657 (1904).

§ 42-18. Tenant's undertaking on continuance or appeal.

In case there is a continuance or an appeal from the magistrate's decision to the district court, the lessee or cropper, or the assigns of either, shall be allowed to retain possession of said property upon his giving an undertaking to the lessor or his assigns, or the adverse party, in a sum double the amount of the claim, if such claim does not amount to more than the value of such property, otherwise to double the value of such property, with good and sufficient surety, to be approved by the magistrate or the clerk of the superior court, conditioned for the faithful payment to the adverse party of such damages as he shall recover in said action.

History

(1876-7, c. 283, s. 3; Code, s. 1756; Rev., s. 1995; C.S., s. 2358; 1971, c. 533, s. 2.)

CASE NOTES

Where the lessor has taken possession of the crop, and is solvent and has been required to give the bond of indemnity, the court will not restrain him from selling the crop. In such a case it seems that the tenant cannot regain possession of the crop under the provisions of G.S. 42-18, since that section contemplates nonintervention on the part of the court and not a removal of possession from one party to another. Wilson v. Respass, 86 N.C. 112 (1882).

§ 42-19. Crops delivered to landlord on his undertaking.

In case the lessee or cropper, or the assigns of either, at the time of the appeal or continuance mentioned in G.S. 42-18, fails to give the undertaking therein required, then the sheriff or other lawful officer shall deliver the property into the actual possession of the lessor or his assigns, upon the lessor or his assigns giving to the adverse party an undertaking in double the amount of said property, to be justified as required in G.S. 42-18, conditioned for the forthcoming of such property, or the value thereof, in case judgment is pronounced against him.

History

(1876-7, c. 283, s. 4; Code, s. 1757; Rev., s. 1996; C.S., s. 2359; 1973, c. 108, s. 17.)

CASE NOTES

§ 42-20. Crops sold, if neither party gives undertaking.

If neither party gives the undertaking described in G.S. 42-18 and 42-19, it is the duty of the clerk of the superior court to issue an order to the sheriff, or other lawful officer, directing him to take into his possession all of said property, or so much thereof as may be necessary to satisfy the claimant's demand and costs, and to sell the same under the rules and regulations prescribed by law for the sale of personal property under execution, and to hold the proceeds thereof subject to the decision of the court upon the issue or issues pending between the parties.

History

(1876-7, c. 283, s. 5; Code, s. 1758; Rev., s. 1997; C.S., s. 2360; 1971, c. 533, s. 3.)

§ 42-21. Tenant's crop not subject to execution against landlord.

Whenever servants and laborers in agriculture shall by their contracts, oral or written, be entitled, for wages, to a part of the crops cultivated by them, such part shall not be subject to sale under executions against their employers, or the owners of the land cultivated.

History

(Code, s. 1796; Rev., s. 1998; C.S., s. 2361.)

§ 42-22. Unlawful seizure by landlord or removal by tenant misdemeanor.

If any landlord shall unlawfully, willfully, knowingly and without process of law, and unjustly seize the crop of his tenant when there is nothing due him, he shall be guilty of a Class 1 misdemeanor. If any lessee or cropper, or the assigns of either, or any other person, shall remove a crop, or any part thereof, from land without the consent of the lessor or his assigns, and without giving him or his agent five days' notice of such intended removal, and before satisfying all the liens held by the lessor or his assigns, on said crop, he shall be guilty of a Class 1 misdemeanor.

History

(1876-7, c. 283, s. 6; 1883, c. 83; Code, s. 1759; Rev., ss. 3664, 3665; C.S., s. 2362; 1993, c. 539, s. 404; 1994, Ex. Sess., c. 24, s. 14(c).)

Legal Periodicals. - For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).

CASE NOTES

I. In General.
II. Seizure of Crops.
III. Removal of Crops.

I. IN GENERAL.

Purpose. - The purpose of this section is to render the statutory provisions and regulations of the preceding sections more effective, and this penal provision must be interpreted in that light and in that view. It embraces both the landlord and the tenant, and intends the more effectually to secure their respective rights as prescribed. State v. Ewing, 108 N.C. 755, 13 S.E. 10 (1981).

The leading and material part of the purpose of this section is to keep the crops on the land, so that they may be easily seen, known, identified and protected, and to prevent fraud and fraudulent practices that would be greatly facilitated by removing them from the land to any distance. State v. Williams, 106 N.C. 646, 10 S.E. 901 (1890).

Section Applies Only to Specified Liens. - This section does not extend to and embrace all liens which the lessor may have on any property of the tenants, but only "all the liens held by the lessor or his assigns on the crop." State v. Turner, 106 N.C. 91, 10 S.E. 1026 (1890).

This section extends to and protects receivers charged with the management of lands. State v. Turner, 106 N.C. 91, 10 S.E. 1026 (1890).

The lessor's rights cannot be abridged by any subordinate contracts of the lessee. Montague v. Mial, 89 N.C. 137 (1883).

Cited in Never Fail Land Co. v. Cole, 197 N.C. 452, 149 S.E. 585 (1929); Hall v. Odom, 240 N.C. 66, 81 S.E.2d 129 (1954).

II. SEIZURE OF CROPS.

Actual Seizure Unnecessary. - To constitute the offense of an unlawful seizure of crops by a landlord under this section, it is not essential that the landlord should take forcible or even manual possession of them; the offense will be complete if he exercises that possession or control which prevents the tenant from gathering and removing his crop in a peaceable manner. State v. Ewing, 108 N.C. 755, 13 S.E. 10 (1891).

III. REMOVAL OF CROPS.

Removal of Crops Is a Misdemeanor Only. - The offense of removing crops, without payment or notice of such removal, although it may have been committed secretly, or at night, is a simple misdemeanor, and cannot be punished by imprisonment in the penitentiary. State v. Powell, 94 N.C. 920 (1886).

Larceny of Crops. - An indictment for larceny will not lie against a lessee or cropper for secretly appropriating the crop to his own use, even if done with a felonious intent, where he is in the actual possession of the same. State v. Copeland, 86 N.C. 691 (1882).

An indictment for larceny will lie against a lessee or cropper for secretly appropriating the crop to his own use, where his actual possession thereof has terminated by a delivery to the landlord. State v. Webb, 87 N.C. 558 (1882).

If the crop is in the actual possession of the landlord, though undivided, the tenant may be convicted of larceny for feloniously taking and carrying it away; and the ownership of the property will be laid properly in the name of the landlord. State v. King, 98 N.C. 648, 4 S.E. 44 (1887).

Gathering the Crop. - How far the tenant might be justified under the statute in severing the crops from the land and storing them on it simply for the purpose of protection to them has been doubtful, but it has been held that he may do so in good faith for such purpose; he may not go beyond that. Varner v. Spencer, 72 N.C. 381 (1875); State v. Williams, 106 N.C. 646, 10 S.E. 901 (1890).

The gathering and preservation of crops was not the evil intended to be remedied by this section, but rather, the wrongful appropriation, whether by carrying them off the premises or consuming them on the premises. Varner v. Spencer, 72 N.C. 381 (1875).

Feeding Crop to Stock. - Where a lessee, after putting a crop in the crib, converted a portion thereof to his own use by feeding it to his stock without the consent of the landlord, this was a removal within the meaning of this section and was indictable. Varner v. Spencer, 72 N.C. 381 (1875).

Removal from Premises. - Where a tenant, without the consent of, or notice to, his landlord, and before satisfying the latter's lien, removed a portion of the crop from the land upon which it was produced and stored it in a building upon the tenant's own land, it was held that he was guilty of unlawfully removing crops, notwithstanding the fact that he made the removal for the purpose of sheltering the crop, and kept it separate from others. State v. Williams, 106 N.C. 646, 10 S.E. 901 (1890).

If it becomes necessary, in possible cases, to remove crops from the land for their protection, this should be done on notice, or legal steps taken as contemplated and allowed by the statute. State v. Williams, 106 N.C. 646, 10 S.E. 901 (1890).

Intent Is Immaterial. - While the obvious purpose of this section is the protection of the lessor's interest against a fraudulent disposition or appropriation of the property, inconsistent with his right and tending to defeat his lien for rent, the wrongful intent is not a constituent of the criminal act described, and the offense is sufficiently charged in the substantial words of the act. State v. Pender, 83 N.C. 651 (1880).

The intent in making the removal is immaterial. State v. Williams, 106 N.C. 646, 10 S.E. 901 (1890); State v. Crook, 132 N.C. 1053, 44 S.E. 32 (1903).

Intent Implied from Act. - The statute broadly forbids the removal of the crops, or any part of them, from the land, except in the case and in the way prescribed, and that without regard to the actual intent. The removal implies the intent to commit the offense. State v. Williams, 106 N.C. 646, 10 S.E. 901 (1890).

Lack of Notice Part of Offense. - The offense of removing a crop by a tenant before paying the rent and discharging all liens of the landlord on it is not complete unless the crop is removed without giving the five days' notice, for if the notice is given, removing the crop is not an offense. State v. Crowder, 97 N.C. 432, 1 S.E. 690 (1887).

In order to convict the defendant of the offense of removing a crop without the consent of the landlord, the burden is on the State to show that the defendant had not given his landlord the statutory five days' previous notice before the crop had been removed. State v. Harris, 161 N.C. 267, 76 S.E. 683 (1912).

How Want of Notice Proven. - The want of notice may be proved by any competent evidence, and it is not necessary that it should be proved by the landlord or his agent or assignee. State v. Crowder, 97 N.C. 432, 1 S.E. 690 (1887).

If a tenant aids and abets a subtenant in removing a crop, before paying the lien of the landlord, he is guilty of a misdemeanor. State v. Crook, 132 N.C. 1053, 44 S.E. 32 (1903).

Landlord's Failure to Comply with Contract No Defense. - A tenant indicted for removal of crops without giving the landlord five days' notice cannot show in defense that he had sustained damage by the failure of the landlord to comply with the contract to the amount of the rents due. State v. Bell, 136 N.C. 674, 49 S.E. 163 (1904), overruling State v. Neal, 129 N.C. 692, 40 S.E. 205 (1901).

Indictment Must Follow. - An indictment under this section charging the defendant with removing the crop "without satisfying all liens on said crop" is defective. The words of the statute, "before satisfying all liens held by the lessor or his assigns on said crop," should have been followed. State v. Merritt, 89 N.C. 506 (1883); State v. Rose, 90 N.C. 712 (1884).

Sufficient Averments. - In an indictment under this section, it is sufficient to aver, in the words of the statute, that the act was done, "willfully and unlawfully," leaving it to the defendant to show in excuse, if he can, that such removal was made in good faith and for the preservation of the crop. State v. Pender, 83 N.C. 651 (1880).

An averment in an indictment for removing a crop "without having given any notice of such intended removal" is equivalent to the averment that the removal was made without giving "five days' notice." State v. Powell, 94 N.C. 920 (1886).

Where an indictment for removing a crop alleged that the defendants did "rent from B," and subsequently, that he did "remove the crop without satisfying all liens held by said B," it was held that this, in effect, sufficiently charged the relation of landlord and tenant, and that the "liens held by the lessor" were unpaid at the time of the alleged unlawful removal. State v. Turner, 106 N.C. 91, 10 S.E. 1026 (1890).

In this section the word "crop" includes those ungathered as well as those gathered, and an indictment charging that the landlord seized the "crop growing and unmatured in the field," etc., charges an indictable offense, when it is otherwise sufficient. State v. Townsend, 170 N.C. 696, 86 S.E. 718 (1915).

Allegation as to Lien. - It is not necessary to allege, in an indictment under this section, that the lessor or landlord had a lien on the crop, where the bill contains an averment of the lease and of the relation of landlord and tenant, or cropper. By virtue of the statute the law implies a lien, and of this the courts will take notice. State v. Smith, 106 N.C. 653, 11 S.E. 166 (1890), distinguishing State v. Merritt, 89 N.C. 506 (1883). See State v. Rose, 90 N.C. 712 (1884).

In an indictment for removing a crop, it is not necessary to negative the fact that, by agreement between the parties, it was stipulated that the crops should not be subjected to the statutory liens. State v. Turner, 106 N.C. 91, 10 S.E. 1026 (1890).

Variance Not Shown. - Where an indictment for removal of crops without notice to the landlord charged an agreement by the defendant to raise a crop on the land of G, and on the trial the proof showed the title to be in another, who rented the land to G, it was held that there was no variance. State v. Foushee, 117 N.C. 766, 23 S.E. 247 (1895).

Arrest of Judgment. - When on the trial it was proved that the defendants, who were indicted as third persons for removing the crop, had a license from the tenant, from whom they bought the crop, but such fact was not charged in the indictment, the judgment would be arrested. State v. Sears, 71 N.C. 295 (1874).

§ 42-22.1. Failure of tenant to account for sales under tobacco marketing cards.

Any tenant or share cropper having possession of a tobacco marketing card issued by any agency of the State or federal government who sells tobacco authorized to be sold thereby and fails to account to his landlord, to the extent of the net proceeds of such sale or sales, for all liens, rents, advances, or other claims held by his landlord against the tobacco or the proceeds of the sale of such tobacco, shall be guilty of a Class 1 misdemeanor.

History

(1949, c. 193; 1993, c. 539, s. 405; 1994, Ex. Sess., c. 24, s. 14(c).)

Legal Periodicals. - For brief comment on this section, see 27 N.C.L. Rev. 466 (1949).

§ 42-23. Terms of agricultural tenancies in certain counties.

All agricultural leases and contracts hereafter made between landlord and tenant for a period of one year or from year to year, whether such tenant pay a specified rental or share in the crops grown, such year shall be from December first to December first, and such period of time shall constitute a year for agricultural tenancies in lieu of the law and custom heretofore prevailing, namely from January first to January first. In all cases of such tenancies a notice to quit of one month as provided in G.S. 42-14 shall be applicable. If on account of illness or any other good cause, the tenant is unable to harvest all the crops grown on lands leased by him for any year prior to the termination of his lease contract on December first, he shall have a right to return to the premises vacated by him at any time prior to December thirty-first of said year, for the purpose only of harvesting and dividing the remaining crops so ungathered. But he shall have no right to use the houses or outbuildings or that part of the lands from which the crops have been harvested prior to the termination of the tenant year, as defined in this section.

This section shall only apply to the counties of Alamance, Anson, Ashe, Bladen, Brunswick, Columbus, Craven, Cumberland, Duplin, Edgecombe, Gaston, Greene, Hoke, Jones, Lenoir, Lincoln, Montgomery, Onslow, Pender, Person, Pitt, Robeson, Sampson, Wayne and Yadkin.

History

(Pub. Loc. 1929, c. 40; Pub. Loc. 1935, c. 288; Pub. Loc. 1937, cc. 96, 600; Pub. Loc. 1941, c. 41; 1943, c. 68; 1945, c. 700; 1949, c. 136; 1953, c. 499, s. 1; 1955, c. 136; 1959, c. 1076; 1981, c. 97, s. 1.)

Local Modification. - Columbus: 1947, c. 783; Harnett: 1955, c. 938.

CASE NOTES

Applicability. - For a lease to fall within this section it must be both (1) for an agricultural purpose, and (2) for a period of one year or from year to year. Lewis v. Lewis Nursery, Inc., 80 N.C. App. 246, 342 S.E.2d 45, cert. denied, 317 N.C. 704, 347 S.E.2d 43 (1986).

When Notice Must Be Given. - Because this section prescribes December 1 as the expiration of the lease year, notice must be given by the preceding November 1. Lewis v. Lewis Nursery, Inc., 80 N.C. App. 246, 342 S.E.2d 45, cert. denied, 317 N.C. 704, 347 S.E.2d 43 (1986).

This section requires that notice to quit be given, in accordance with G.S. 42-14, one month before the expiration of the tenancy, even if the tenancy is an estate for years. Lewis v. Lewis Nursery, Inc., 80 N.C. App. 246, 342 S.E.2d 45, cert. denied, 317 N.C. 704, 347 S.E.2d 43 (1986).

Effect of Failure to Provide Notice. - Generally, the effect of failure to provide notice when it is required under G.S. 42-14 is that the parties are bound to a new term. This rule applies to agricultural tenancies, even those for fixed one-year terms under this section. Lewis v. Lewis Nursery, Inc., 80 N.C. App. 246, 342 S.E.2d 45, cert. denied, 317 N.C. 704, 347 S.E.2d 43 (1986).

Cited in Wells v. Planters Nat'l Bank & Trust Co., 265 N.C. 98, 143 S.E.2d 217 (1965).

§ 42-24. Turpentine and lightwood leases.

This Chapter shall apply to all leases or contracts to lease turpentine trees, or use lightwood for purposes of making tar, and the parties thereto shall be fully subject to the provisions and penalties of this Chapter.

History

(1876-7, c. 283, s. 7; Code, s. 1762; 1893, c. 517; Rev., s. 1999; C.S., s. 2363.)

CASE NOTES

Extension of G.S. 42-22. - This section extends G.S. 42-22 to "all leases or contracts to lease turpentine trees," and thus it is made a misdemeanor for the lessee of turpentine trees to remove any part of the turpentine crop in the like case as when the removal of the crop by an agricultural tenant is made an offense. State v. Turner, 106 N.C. 91, 10 S.E. 1026 (1890).

Cited in Farmville Oil & Fertilizer Co. v. Bourne, 205 N.C. 337, 171 S.E. 368 (1933).

§ 42-25. Mining and timberland leases.

If in a lease of land for mining, or of timbered land for the purpose of manufacturing the timber into goods, rent is reserved, and if it is agreed in the lease that the minerals, timber or goods, or any portion thereof, shall not be removed until the payment of the rent, in such case the lessor shall have the rights and be entitled to the remedy given by this Chapter.

History

(1868-9, c. 156, s. 16; Code, s. 1763; Rev., s. 2000; C.S., s. 2364.)

CASE NOTES

Where the owner of lands conveys the timber standing and growing thereon, with provision that the time for cutting and removing it will be extended upon payment of a certain sum, this is not a leasehold interest but an estate in fee. Carolina Timber Co. v. Wills, 171 N.C. 262, 88 S.E. 327 (1916).

§§ 42-25.1 through 42-25.5: Reserved for future codification purposes.

ARTICLE 2A. Ejectment of Residential Tenants.

Sec.

§ 42-25.6. Manner of ejectment of residential tenants.

It is the public policy of the State of North Carolina, in order to maintain the public peace, that a residential tenant shall be evicted, dispossessed or otherwise constructively or actually removed from his dwelling unit only in accordance with the procedure prescribed in Article 3 or Article 7 of this Chapter.

History

(1981, c. 566, s. 1; 1995, c. 419, s. 1.1.)

Legal Periodicals. - For article discussing self-help residential eviction by landlords in light of the Landlord Eviction Remedies Act, see 13 N.C. Cent. L.J. 195 (1982).

For comment on the Landlord Eviction Remedies Act in light of Spinks v. Taylor, 303 N.C. 256, 278 S.E.2d 501 (1981), see 18 Wake Forest L. Rev. 25 (1982).

For note, "When A Hotel Is Your Home, Is There Protection?," see 15 Campbell L. Rev. 295 (1993).

For article, "Who Is a Tenant? The Correct Definition of the Status in North Carolina," see 21 N.C. Cent. L.J. 79 (1995).

CASE NOTES

This Article prohibits landlord self-help eviction where residential tenancies are involved. Baker v. Rushing, 104 N.C. App. 240, 409 S.E.2d 108 (1991).

North Carolina law requires eviction of residential tenants to be accomplished through court action; thus, in federally subsidized housing cases, the court decides whether applicable rules and regulations have been followed and whether termination of the lease is permissible. Charlotte Hous. Auth. v. Patterson, 120 N.C. App. 552, 464 S.E.2d 68 (1995).

Burden of Persuasion. - Dismissal of a summary ejectment action was error because a trial court held the landlord to a clear, cogent, and convincing evidence standard, and in a summary ejectment action, the landlord's burden of persuasion was by the preponderance of the evidence as set forth in G.S. 42-30; this standard also applied to appeals of summary ejectment actions in the district court. Durham Hosiery Mill Ltd. P'ship v. Morris, 217 N.C. App. 590, 720 S.E.2d 426 (2011).

The landlord's exclusive remedy to regain possession of house is by means of statutory summary ejectment proceedings pursuant to G.S. 42-26 to 42-36.1. Dobbins v. Paul, 71 N.C. App. 113, 321 S.E.2d 537 (1984), overruled on other grounds, Stanley v. Moore, 339 N.C. 717, 454 S.E.2d 225 (1995).

Residents of Hotel. - Where each plaintiff resided in hotel pursuant to an oral lease and leased his apartment as his sole and permanent residence, some plaintiffs had resided in the building for as long as six years, and the payments for the apartments were made weekly and were referred to by each party as "rent," at a minimum, the evidence presented genuine issues of material fact regarding plaintiffs' status as residential tenants, and for this reason, summary judgment was improperly granted. Baker v. Rushing, 104 N.C. App. 240, 409 S.E.2d 108 (1991).

§ 42-25.7. Distress and distraint not permitted.

It is the public policy of the State of North Carolina that distress and distraint are prohibited and that landlords of residential rental property shall have rights concerning the personal property of their residential tenants only in accordance with G.S. 42-25.9(d), 42-25.9(g), 42-25.9(h), 42-36.2, 28A-25-2, or 28A-25-7.

History

(1981, c. 566, s. 1; 1995, c. 460, s. 8; 2012-17, s. 8; 2021-71, s. 2.2.)

Editor's Note. - The reference to G.S. 28A-25-7 at the end of this section was originally added as G.S. 28A-25-1.2 and was redesignated as G.S. 28A-25-7 at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2012-17, s. 8, effective October 1, 2012, substituted "42-36.2, or 28A-25-7" for "or 42-36.2." For applicability, see editor's note.

Session Laws 2021-71, s. 2.2, effective July 2, 2021, inserted "28A-25-2."

§ 42-25.8. Contrary lease provisions.

Any lease or contract provision contrary to this Article shall be void as against public policy.

History

(1981, c. 566, s. 1.)

CASE NOTES

Modified Timeline Prohibited. - Trial court erred in dismissing a former owner's conversion claim against a foreclosing lender and its property manager because the parties could not satisfy the statutory 10-day waiting period by agreeing to a modified timeline where such an agreement violated public policy and was void, and nothing suggested that the former owner had only one opportunity to obtain possession of her personal property during the 10-day period. Heaton-Sides v. Snipes, 233 N.C. App. 1, 755 S.E.2d 648 (2014).

§ 42-25.9. Remedies.

If any lessor, landlord, or agent removes or attempts to remove a tenant from a dwelling unit in any manner contrary to this Article, the tenant shall be entitled to recover possession or to terminate his lease and the lessor, landlord or agent shall be liable to the tenant for damages caused by the tenant's removal or attempted removal. Damages in any action brought by a tenant under this Article shall be limited to actual damages as in an action for trespass or conversion and shall not include punitive damages, treble damages or damages for emotional distress.
If any lessor, landlord, or agent seizes possession of or interferes with a tenant's access to a tenant's or household member's personal property in any manner not in accordance with G.S. 44A-2(e2), 42-25.9(d), 42-25.9(g), 42-25.9(h), or G.S. 42-36.2 the tenant or household member shall be entitled to recover possession of his personal property or compensation for the value of the personal property, and, in any action brought by a tenant or household member under this Article, the landlord shall be liable to the tenant or household member for actual damages, but not including punitive damages, treble damages or damages for emotional distress.
The remedies created by this section are supplementary to all existing common-law and statutory rights and remedies.
If any tenant abandons personal property of seven hundred fifty dollar ($750.00) value or less in the demised premises, or fails to remove such property at the time of execution of a writ of possession in an action for summary ejectment, the landlord may, as an alternative to the procedures provided in G.S. 42-25.9(g), 42-25.9(h), or 42-36.2, deliver the property into the custody of a nonprofit organization regularly providing free or at a nominal price clothing and household furnishings to people in need, upon that organization agreeing to identify and separately store the property for 30 days and to release the property to the tenant at no charge within the 30-day period. A landlord electing to use this procedure shall immediately post at the demised premises a notice containing the name and address of the property recipient, post the same notice for 30 days or more at the place where rent is received, and send the same notice by first-class mail to the tenant at the tenant's last known address. Provided, however, that the notice shall not include a description of the property.
For purposes of subsection (d), personal property shall be deemed abandoned if the landlord finds evidence that clearly shows the premises has been voluntarily vacated after the paid rental period has expired and the landlord has no notice of a disability that caused the vacancy. A presumption of abandonment shall arise 10 or more days after the landlord has posted conspicuously a notice of suspected abandonment both inside and outside the premises and has received no response from the tenant.
Any nonprofit organization agreeing to receive personal property under subsection (d) shall not be liable to the owner for a disposition of such property provided that the property has been separately identified and stored for release to the owner for a period of 30 days.
Seven days after being placed in lawful possession by execution of a writ of possession, a landlord may dispose of personal property remaining on the premises in accordance with the provisions of this section and G.S. 42-36.2(b), except that in the case of the lease of a space for a manufactured home as defined in G.S. 143-143.9(6), G.S. 44A-2(e2) shall apply to the disposition of a manufactured home with a current value in excess of five hundred dollars ($500.00) and its contents by a landlord after being placed in lawful possession by execution of a writ of possession. During the seven-day period after being placed in lawful possession by execution of a writ of possession, a landlord may move for storage purposes, but shall not throw away, dispose of, or sell any items of personal property remaining on the premises unless otherwise provided for in this Chapter. Upon the tenant's request prior to the expiration of the seven-day period, the landlord shall release possession of the property to the tenant during regular business hours or at a time agreed upon. If the landlord elects to sell the property at public or private sale, the landlord shall give written notice to the tenant by first-class mail to the tenant's last known address at least seven days prior to the day of the sale. The seven-day notice of sale may run concurrently with the seven-day period which allows the tenant to request possession of the property. The written notice shall state the date, time, and place of the sale, and that any surplus of proceeds from the sale, after payment of unpaid rents, damages, storage fees, and sale costs, shall be disbursed to the tenant, upon request, within seven days after the sale, and will thereafter be delivered to the government of the county in which the rental property is located. Upon the tenant's request prior to the day of sale, the landlord shall release possession of the property to the tenant during regular business hours or at a time agreed upon. The landlord may apply the proceeds of the sale to the unpaid rents, damages, storage fees, and sale costs. Any surplus from the sale shall be disbursed to the tenant, upon request, within seven days of the sale and shall thereafter be delivered to the government of the county in which the rental property is located.
If the total value of all property remaining on the premises at the time of execution of a writ of possession in an action for summary ejectment is less than five hundred dollars ($500.00), the property shall be deemed abandoned five days after the time of execution, and the landlord may throw away or dispose of the property. Upon the tenant's request prior to the expiration of the five-day period, the landlord shall release possession of the property to the tenant during regular business hours or at a time agreed upon.

History

(1981, c. 566, s. 1; 1985, c. 612, ss. 1-4; 1995, c. 460, ss. 1-3; 1999-278, ss. 1, 2; 2012-17, s. 2(a), (b); 2013-334, s. 4.)

Effect of Amendments. - Session Laws 2012-17, s. 2(a) and (b), effective October 1, 2012, substituted "seven hundred fifty dollar ($750.00)" for "five hundred dollar ($500.00)" in the first sentence in subsection (d); and substituted "five hundred dollars ($500.00)" for "one hundred dollars ($100.00)" in the first sentence of subsection (h). For applicability, see editor's note.

Session Laws 2013-334, s. 4, effective September 1, 2013, in subsection (g), substituted "seven-day" for "10-day" and "seven days" for "ten days" throughout, and, in the first sentence substituted "Seven days" for "Ten days," "dispose" for "throw away, dispose of, or sell all items," and added "in accordance with the provisions of this section and G.S. 42-36.2(b)." For applicability, see editor's note.

Legal Periodicals. - For note, "When A Hotel Is Your Home, Is There Protection?," see 15 Campbell L. Rev. 295 (1993).

CASE NOTES

Waiting Period. - Trial court erred in dismissing a former owner's conversion claim against a foreclosing lender and its property manager because the parties could not satisfy the statutory 10-day waiting period by agreeing to a modified timeline where such an agreement violated public policy and was void, and nothing suggested that the former owner had only one opportunity to obtain possession of her personal property during the 10-day period. Heaton-Sides v. Snipes, 233 N.C. App. 1, 755 S.E.2d 648 (2014).

Recovery of Treble Damages and Attorney's Fees. - The prohibition against punitive or treble damages in wrongful eviction actions contained in subsection (a) does not preclude tenants from recovering treble damages under G.S. 75-16 and attorney's fees under G.S. 75-16.1 of the Unfair and Deceptive Practices Act. Stanley v. Moore, 339 N.C. 717, 454 S.E.2d 225 (1995).

Tenant's Judgment Nondischargeable. - Tenant's state court judgment was nondischargeable due to embezzlement under bankruptcy law as although the debtor as a landlord had the right to padlock the property and to possess the tenant's personal property, he also had a legal obligation to release the property to the tenant; the debtor's claim that the tenant made no demand for his personal property was not credible and the debtor's actions involved moral turpitude as he actively ignored the tenant and disposed of the property, without authorization, before the expiration of the 10-day period under G.S. 42-25.9 and G.S. 42-36.2. In re Reid, - Bankr. - (Bankr. M.D.N.C. Feb. 11, 2016).

Cited in North Carolina Steel, Inc. v. National Council Comp. Ins., 347 N.C. 627, 496 S.E.2d 369 (1998).

ARTICLE 3. Summary Ejectment.

Sec.

§ 42-26. Tenant holding over may be dispossessed in certain cases.

Any tenant or lessee of any house or land, and the assigns under the tenant or legal representatives of such tenant or lessee, who holds over and continues in the possession of the demised premises, or any part thereof, without the permission of the landlord, and after demand made for its surrender, may be removed from such premises in the manner hereinafter prescribed in any of the following cases:
1. When a tenant in possession of real estate holds over after his term has expired.
2. When the tenant or lessee, or other person under him, has done or omitted any act by which, according to the stipulations of the lease, his estate has ceased.
3. When any tenant or lessee of lands or tenements, who is in arrear for rent or has agreed to cultivate the demised premises and to pay a part of the crop to be made thereon as rent, or who has given to the lessor a lien on such crop as a security for the rent, deserts the demised premises, and leaves them unoccupied and uncultivated.
An arrearage in costs owed by a tenant for water or sewer services pursuant to G.S. 62-110(g) or electric service pursuant to G.S. 62-110(h) shall not be used as a basis for termination of a lease under this Chapter. Any payment to the landlord shall be applied first to the rent owed and then to charges for electric service, or water or sewer service, unless otherwise designated by the tenant.
In an action for ejectment based upon G.S. 42-26(a)(2), the lease may provide that the landlord's acceptance of partial rent or partial housing subsidy payment does not waive the tenant's breach for which the right of reentry was reserved, and the landlord's exercise of such a provision does not constitute a violation of Chapter 75 of the General Statutes.

History

(4 Geo. II, c. 28; 1868-9, c. 156, s. 19; Code, ss. 1766, 1777; 1905, cc. 297, 299, 820; Rev., s. 2001; C.S., s. 2365; 2001-502, s. 3; 2004-143, s. 2; 2011-252, s. 1; 2012-17, s. 3.)

Local Modification. - Johnston: 1933, c. 390.

Effect of Amendments. - Session Laws 2004-143, s. 2, effective August 1, 2004, in subsection (b), substituted "costs" for "additional rent," substituted "water or sever" for "water and sewer" preceding "services," added "under this Chapter" at the end of the first sentence, substituted "payment to the landlord" for "partial payment of monthly rent," deleted "base" preceding "rent," and added "owed and then to charges for water or sewer service, unless otherwise designated by the tenant" at the end of the last sentence.

Session Laws 2011-252, s. 1, effective October 1, 2011, and applicable to leases entered into on or after that date, in subsection (b), inserted "or electric service pursuant to G.S. 62-110(h)" in the first sentence, and inserted "electric service, or" in the last sentence.

Session Laws 2012-17, s. 3, effective October 1, 2012, added subsection (c). For applicability, see editor's note.

Legal Periodicals. - For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).

For note on retaliatory evictions and housing code enforcement, see 49 N.C.L. Rev. 569 (1971).

For article on installment land contracts in North Carolina, see 3 Campbell L. Rev. 29 (1981).

For comment on landlords' eviction remedies in the light of Spinks v. Taylor, 303 N.C. 256, 278 S.E.2d 501 (1981), and the 1981 Act to Clarify Landlord Eviction Remedies in Residential Tenancies, see 60 N.C.L. Rev. 885 (1982).

For article discussing self-help residential eviction by landlords in light of the Landlord Eviction Remedies Act, see 13 N.C. Cent. L.J. 195 (1982).

For comment on the Landlord Eviction Remedies Act in light of Spinks v. Taylor, 303 N.C. 256, 278 S.E.2d 501 (1981), see 18 Wake Forest L. Rev. 25 (1982).

For article, "Opportunity in a Pandemic: Ending the Eviction Cycle by Constitutionally Providing for Inclusionary Zoning with State-Enacted Land-Use Regulations,” see 43 Campbell L. Rev. 375 (2021).

CASE NOTES

I. In General.
II. Holding Over.
III. Breach of Provision of Lease.

I. IN GENERAL.

Federal Preemption. - Housing authority's request to summarily evict a tenant, under 42 U.S.C.S. § 1437d(l)(6), based on a guest's drug activity, was properly denied because (1) G.S. 42-26(a)(2) governed summary eviction, which required, inter alia, that the eviction not be unconscionable, and, (2) the federal statute did not preempt the unconscionability provision, as the provision did not conflict with or stand as an obstacle to achieving the federal statute's purpose, since the statute gave housing authorities discretion to evict, instead of requiring eviction, and the U.S. Department of Housing and Urban Development encouraged the consideration of individual circumstances. E. Carolina Reg'l Hous. Auth. v. Lofton, 238 N.C. App. 42, 767 S.E.2d 63 (2014).

42 U.S.C.S. § 1437d(l)(6) did not preempt the unconscionability provision of G.S. 42-26(a)(2) because the provision did not conflict with or stand as an obstacle to achieving the federal statute's purpose, since (1) the statute gave housing authorities discretion to evict, instead of requiring eviction, and (2) the U.S. Department of Housing and Urban Development encouraged the consideration of individual circumstances. E. Carolina Reg'l Hous. Auth. v. Lofton, 238 N.C. App. 42, 767 S.E.2d 63 (2014).

The basis and scope of summary ejectment in actions between landlord and tenant are established by this section. Warren v. Breedlove, 219 N.C. 383, 14 S.E.2d 43 (1941).

Remedy Is Restricted to Cases Enumerated. - The remedy by summary proceedings in ejectment is restricted to those cases expressly provided by this section. Howell v. Branson, 226 N.C. 264, 37 S.E.2d 687 (1946), citing Hauser v. Morrison, 146 N.C. 248, 59 S.E. 693 (1907); Morris v. Austraw, 269 N.C. 218, 152 S.E.2d 155 (1967); Chandler v. Cleveland Sav. & Loan Ass'n, 24 N.C. App. 455, 211 S.E.2d 484 (1975).

The remedy provided by this section is restricted to cases where the relation between the parties is simply that of landlord and tenant. College Heights Credit Union v. Boyd, 104 N.C. App. 494, 409 S.E.2d 742 (1991).

This section is only intended to apply to case in which tenant entered into possession under some contract or lease, either actual or implied, with the supposed landlord, or with some person under whom the landlord claimed in privity, or where the tenant himself is in privity with some person who had so entered. Jones v. Swain, 89 N.C. App. 663, 367 S.E.2d 136 (1988).

Summary Ejectment Inappropriate. - Summary ejectment was inappropriate because a federally subsidized housing authority failed to exercise its discretion as required by federal law before pursuing a tenant's eviction; neither the federal statutory framework nor the housing authority's lease or policies compelled eviction, but instead, they only delineated the grounds or cause for eviction. E. Carolina Reg'l Hous. Auth. v. Lofton, 369 N.C. 8, 789 S.E.2d 449 (2016).

Jurisdiction Is Statutory. - Jurisdiction in summary ejectment proceedings is purely statutory, and may be exercised only in cases where the relationship of landlord and tenant exists, and the tenant holds over after the expiration of his term, or has otherwise violated the provisions of his lease. Howell v. Branson, 226 N.C. 264, 37 S.E.2d 687 (1946); Goins v. McLoud, 228 N.C. 655, 46 S.E.2d 712 (1948).

A court, in conducting summary ejectment proceedings, derives its jurisdiction solely from this statute, and it may exercise such jurisdiction only where a relationship of landlord and tenant exists and where one of three statutory violations occurs. Hayes v. Turner, 98 N.C. App. 451, 391 S.E.2d 513 (1990).

Trial court had jurisdiction pursuant to G.S. 42-26 over dispute between plaintiff landlord and defendant tenant involving a commercial lease, as that section had been applied to the summary ejectment of commercial tenants and plaintiff had sought summary ejectment of defendant for defendant's nonpayment of rent. ARE-100/800/801 Capitola, LLC v. Triangle Labs., Inc., 144 N.C. App. 212, 550 S.E.2d 31 (2001).

Trial court conducting a summary ejectment proceeding for a commercial tenant obtains the court's jurisdiction from G.S. 42-26. Gardner v. Ebenezer, LLC, 190 N.C. App. 432, 660 S.E.2d 172 (2008).

Under subdivision (2), a breach of the lease cannot be made the basis of summary ejectment unless the lease itself provides for termination by such breach or reserves a right of reentry for such breach. Stanley v. Harvey, 90 N.C. App. 535, 369 S.E.2d 382 (1988).

Under this section, it is no longer necessary to allege that a landlord-tenant relationship exists between parties as jurisdictional matter, but it is still necessary to show that the relationship exists in order to bring the case within the provisions of this section before the summary ejectment remedy may be properly granted. Jones v. Swain, 89 N.C. App. 663, 367 S.E.2d 136 (1988).

Allegation of Landlord-Tenant Relationship. - Under this section, it is no longer necessary to allege that a landlord-tenant relationship exists between the parties as a jurisdictional matter, but it is still necessary to show that the relationship exists in order to bring the case within the provisions of this section before the summary ejectment remedy may be properly granted. Jones v. Swain, 89 N.C. App. 663, 367 S.E.2d 136 (1988).

Right to Renew Lease. - A tenant, in the absence of an agreement, has neither a legal nor an equitable right to a renewal of the lease. Barnes v. Saleeby, 177 N.C. 256, 98 S.E. 708 (1919).

No Consideration for Option to Renew. - An option in the original lease to renew would not be without consideration, but landlord's agreement during the lease, not constituting part of the lease, not to lease the property without first giving the tenant an opportunity to renew the lease was unenforcable, being without consideration. Barnes v. Saleeby, 177 N.C. 256, 98 S.E. 708 (1919).

The hearing to be afforded tenants of public housing before the determination to evict them requires (1) timely and adequate notice detailing the reasons for a proposed termination, (2) an opportunity on the part of the tenant to confront and cross-examine adverse witnesses, (3) the right of a tenant to be represented by counsel provided by him to delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination and generally safeguard his interests, (4) a decision, based on evidence adduced at the hearing, in which the reasons for decision and the evidence relied on are set forth, and (5) an impartial decision maker. Caulder v. Durham Hous. Auth., 433 F.2d 998 (4th Cir. 1970), cert. denied, 401 U.S. 1003, 91 S. Ct. 1228, 28 L. Ed. 2d 539 (1971).

Relation of Landlord and Tenant Necessary. - The summary remedy in ejectment provided by this section for the ousting of tenants who hold over after the expiration of the term is restricted to cases where the relation between the parties is that of landlord and tenant. McCombs v. Wallace, 66 N.C. 481 (1872); Hughes v. Mason, 84 N.C. 472 (1881); Hauser v. Morrison, 146 N.C. 248, 59 S.E. 693 (1907); McIver v. Seaboard Airline R.R., 163 N.C. 544, 79 S.E. 1107 (1913); Prudential Ins. Co. v. Totten, 203 N.C. 431, 166 S.E. 316 (1932); Simons v. Lebrun, 219 N.C. 42, 12 S.E.2d 644 (1941). See also, Ford v. Ford Moulding Co., 231 N.C. 105, 56 S.E.2d 14 (1949).

When the remedy of summary ejectment is sought, the allegation that the relationship of landlord and tenant exists between the parties is no longer necessary as a jurisdictional matter, but it is still necessary to show that the relationship exists in order to bring the case within the provisions of this section before the remedy may be properly granted. Chandler v. Cleveland Sav. & Loan Ass'n, 24 N.C. App. 455, 211 S.E.2d 484 (1975).

The remedy by summary proceedings in ejectment given by this section is not coextensive with the doctrine of estoppel arising where one enters and holds land under another, but is restricted to the case where the relation between the parties is simply that of landlord and tenant. Hauser v. Morrison, 146 N.C. 248, 59 S.E. 693 (1907); McLaurin v. McIntyre, 167 N.C. 350, 83 S.E. 627 (1914).

Some Contract or Lease Required. - This section was only intended to apply to a case in which the tenant entered into possession under some contract or lease, either actual or implied, with the supposed landlord, or with some person under whom the landlord claimed in privity, or where the tenant himself is in privity with some person who had so entered. McCombs v. Wallace, 66 N.C. 481 (1872).

Trial court erred by granting the new owner of a rental house summary ejectment relief pursuant to G.S. 42-26, because no lease contract existed between the new owner and the tenants who were ordered to surrender possession, and subject matter jurisdiction in a summary ejectment proceeding was premises on an enforceable contract. Adams v. Woods, 169 N.C. App. 242, 609 S.E.2d 429 (2005).

Definite Term Not Necessary. - Summary ejectment will lie only where the relationship of landlord and tenant existed between the parties under a lease contract, express or implied, and the tenant has held over after the expiration of the term, but while it is necessary that the tenant's entry should have been under a demise, it need not be for a definite term, a tenancy at will being sufficient. Simons v. Lebrun, 219 N.C. 42, 12 S.E.2d 644 (1941).

Summary Ejectment of Tenants at Will. - When a landlord tells tenants at will to vacate the premises, their tenancy instantly expires, regardless of whether they have defaulted on the rent, and the landlord has the right to bring an immediate action for summary ejectment under this section. Stout v. Crutchfield, 21 N.C. App. 387, 204 S.E.2d 541, cert. denied, 285 N.C. 595, 205 S.E.2d 726 (1974).

Summary Ejectment Where Purchase Changed to Lease. - Where one unconditionally surrenders his rights under a contract of purchase and enters into a contract of lease, he may be evicted by a summary proceeding under this section; and it is not necessary that he should actually surrender the possession of the land and receive it again at the hands of the lessor. Riley v. Jordan, 75 N.C. 180 (1876).

Obligation to Pay Rent. - Where lease did not contain a provision expressly holding the tenant liable for future rents after ejectment, the lease was terminated when defendants were removed and the landlord was placed in possession pursuant to the summary ejectment proceeding, and thus defendants' obligation to pay future rent was also terminated. Holly Farm Foods, Inc. v. Kuykendall, 114 N.C. App. 412, 442 S.E.2d 94 (1994).

When Section Does Not Apply - Generally. - The remedy by summary ejectment under this and the following sections is not available when there is a relation of mortgagor and mortgagee or vendor and vendee. McLaurin v. McIntyre, 167 N.C. 350, 83 S.E. 627 (1914).

The construction of this section excludes two classes, namely, vendees in possession under a contract for title and vendors retaining possession after a sale, even though such persons are tenants at will or sufferance for some purposes, and are frequently so styled. McCombs v. Wallace, 66 N.C. 481 (1872).

When Section Does Not Apply - Title Disputes. - Where a controversy involved the disputed title to real property, out of which certain equities arose, this section did not apply. McLaurin v. McIntyre, 167 N.C. 350, 83 S.E. 627 (1914).

When title to property is in issue, the jurisdiction of the justice of the peace (now magistrate) is ousted, and the proceeding is properly dismissed as in case of nonsuit upon appeal to the superior (now district) court. Prudential Ins. Co. v. Totten, 203 N.C. 431, 166 S.E. 316 (1932); Home Bldg. & Loan Ass'n v. Moore, 207 N.C. 515, 177 S.E. 633 (1935).

Plaintiff acquired a quitclaim deed to defendants' property at a tax sale and then attempted to quiet title or to establish title to the property through a summary ejectment proceeding. This was simply the wrong action to quiet title and, because the plaintiff and defendants were not in a landlord-tenant relationship, the wrong circumstance under which to bring an action in summary ejectment. College Heights Credit Union v. Boyd, 104 N.C. App. 494, 409 S.E.2d 742 (1991).

When Section Does Not Apply - Bargainor in Deed of Trust. - A bargainor in a deed of trust containing a stipulation of the retention of the possession of the land conveyed until sold under the terms of the trust, who holds possession after a sale of the premises by a trustee, is not such a tenant as comes within the purview of this section, and hence proceedings cannot be taken thereunder to evict him. McCombs v. Wallace, 66 N.C. 481 (1872).

When Section Does Not Apply - Entry as Vendee. - Where a party entered land under a contract of purchase, while he is so possessed a justice of the peace (now magistrate) has no jurisdiction to oust him under this section. McCombs v. Wallace, 66 N.C. 481 (1872); McMillan v. Love, 72 N.C. 18 (1875); Riley v. Jordan, 75 N.C. 180 (1876).

A vendee under a contract for sale and purchase of land is not such a tenant as may be evicted by summary ejectment under this section. Brannock v. Fletcher, 271 N.C. 65, 155 S.E.2d 532 (1967).

If a vendee, after cancellation, of a contract for the sale of property, continues in possession, he is regarded as a tenant at sufferance, and is properly subject to ejectment under this section. Marantz Piano Co. v. Kincaid, 108 N.C. App. 693, 424 S.E.2d 671 (1993).

Who May Bring Action. - The landlord under whom a tenant has entered into possession of the leased premises is the proper person to bring a summary action of ejectment to dispossess the tenant holding over after the expiration of his lease, upon proper notice to vacate, and the objection of the tenant that the landlord has again leased the premises to another to begin immediately upon the expiration of his term, and that the second lessee is the only one who can maintain the proceedings in ejectment, is untenable. Shelton v. Clinard, 187 N.C. 664, 122 S.E. 477 (1924).

Estoppel to Deny Landlord's Title. - A tenant cannot dispute the title of his landlord, either by setting up a title in himself or a third person, during the existence of the lease or tenancy. Lawrence v. Eller, 169 N.C. 211, 85 S.E. 291 (1915). See also, Steadman v. Jones, 65 N.C. 388 (1871).

Neither the tenant nor any person claiming title by or through him can dispute the right of the landlord to recover the premises in ejectment, after the expiration of the lease, upon the ground of a defect of title in the landlord. Callendar v. Sherman, 27 N.C. 711 (1845).

Where the relation of landlord and tenant is established, and the latter is in possession, the tenant will not be permitted to dispute the title of the landlord during the continuance of the lease. Hobby v. Freeman, 183 N.C. 240, 111 S.E. 1 (1922).

In a proceeding before a justice of the peace (now magistrate) under this section, a defendant who does not deny having entered as the tenant of the plaintiff is estopped from setting up a superior title existing at the date of the lease or subsequently acquired from a third person. Heyer v. Beatty, 76 N.C. 28 (1877).

A suit to restrain execution on a judgment in summary ejectment by a justice of the peace (now magistrate) on the ground that the justice had no jurisdiction was properly dismissed where it appeared that plaintiff, formerly the mortgagor of the property, had leased the property and was estopped from attacking the foreclosure and setting up the relation of mortgagor and mortgagee. Shuford v. Greensboro Joint-Stock Land Bank, 207 N.C. 428, 177 S.E. 408 (1934).

Before disputing his landlord's title, the tenant must restore possession. Buckhorn Land & Timber Co. v. Yarbrough, 179 N.C. 335, 102 S.E. 630 (1920).

Sublessee Also Estopped to Deny Title. - Not only the tenant but his sublessee is estopped to deny the title of his immediate landlord. Bonds v. Smith, 106 N.C. 553, 11 S.E. 322 (1890).

Tenant May Dispute Assignment of Lease. - Where an action of ejectment is brought by one claiming to be an assignee of the landlord, the tenant may dispute the assignment. Steadman v. Jones, 65 N.C. 388 (1871).

Consideration of Equitable Defenses. - A justice of the peace (now magistrate) has jurisdiction of a summary action in ejectment, and may determine the questions of tenancy and holding over, and while he has no equitable jurisdiction, he may consider equitable defenses set up in a summary ejectment insofar as they relate to the issue of tenancy. Farmville Oil & Fertilizer Co. v. Bowen, 204 N.C. 375, 168 S.E. 211 (1933).

Provision for Renewal as Defense. - While a provision of renewal of a lease is not itself a renewal so as to vest an estate, yet it gives an equity which may be set up as a defense in a summary proceeding in ejectment. While the court allows this equitable defense to the summary proceedings, the defendants must pay the accrued rent. McAdoo v. Callum Bros. & Co., 86 N.C. 419 (1882).

Claim in Respect to Improvements Outside Scope of Proceeding. - Evidence that the relationship of landlord and tenant existed between the parties and that defendants were holding over after the expiration of the term was sufficient to take the case to the jury and support a judgment for plaintiff in summary ejectment, and defendants' claim in respect to improvements was outside the scope of the proceeding and not justiciable therein. Ford v. Ford Moulding Co., 231 N.C. 105, 56 S.E.2d 14 (1949). See Hargrove v. Cox, 180 N.C. 360, 104 S.E. 757 (1920).

As to insufficient notice to quit, etc. in an action under this section, see Stafford v. Yale, 228 N.C. 220, 44 S.E.2d 872 (1947).

Defendant tenant's estate had not ceased pursuant to G.S. 42-26(2), and thus, plaintiff was not entitled to summarily eject defendant, where the reason the estate had not terminated was that plaintiff's written notice to defendant upon defendant's default of commercial lease for nonpayment of rent did not comply with any of the three methods existing in the lease, but merely stated that plaintiff would be pursuing "curative remedies under the lease and the law." ARE-100/800/801 Capitola, LLC v. Triangle Labs., Inc., 144 N.C. App. 212, 550 S.E.2d 31 (2001).

"Unconscionable." - When determining whether a summary eviction was "unconscionable," the term "unconscionable" meant excessive, unreasonable or shockingly unfair or unjust. E. Carolina Reg'l Hous. Auth. v. Lofton, 238 N.C. App. 42, 767 S.E.2d 63 (2014).

Burden of Proof. - In an action of ejectment, the burden of proving that the tenancy has terminated is on the plaintiff. Poindexter v. Call, 182 N.C. 366, 109 S.E. 26 (1921).

Remedy. - The remedy given by this section is restricted to the case where the relation between the parties is simply that of landlord and tenant. Jones v. Swain, 89 N.C. App. 663, 367 S.E.2d 136 (1988).

The remedy of summary ejectment may be obtained in a small-claim action heard by a magistrate. Chandler v. Cleveland Sav. & Loan Ass'n, 24 N.C. App. 455, 211 S.E.2d 484 (1975).

A lessor has three separate remedies under this Article: (i) possession of the premises; (ii) an award of unpaid rent; and (iii) an award of damages for the tenant's occupation of the premises after the cessation of the estate. Chrisalis Properties, Inc. v. Separate Quarters, Inc., 101 N.C. App. 81, 398 S.E.2d 628 (1990), discretionary review denied, 328 N.C. 570, 403 S.E.2d 509 (1991).

All Damages Must Be Recovered in One Action. - The fact that this Article specifically allows a lessor to bring an action to regain possession of the premises separate from an action for damages does not create an exception to the general rule that all damages must be recovered in one action. Chrisalis Properties, Inc. v. Separate Quarters, Inc., 101 N.C. App. 81, 398 S.E.2d 628 (1990), discretionary review denied, 328 N.C. 570, 403 S.E.2d 509 (1991).

Monetary Relief Limited. - In a summary ejectment proceeding, monetary relief - the recovery of rent in arrears and damages for hold-over occupancy - is limited to the amount that the magistrate is statutorily authorized to award. Chrisalis Properties, Inc. v. Separate Quarters, Inc., 101 N.C. App. 81, 398 S.E.2d 628 (1990), discretionary review denied, 328 N.C. 570, 403 S.E.2d 509 (1991).

Superior Court Has Original Jurisdiction. - When the legislature created the district court division and gave it concurrent original jurisdiction over all matters except probate and matters of decedents' estates, it did not thereby divest the superior court division of any of its original jurisdiction; hence, the superior court division has original jurisdiction over summary ejectment actions. East Carolina Farm Credit v. Salter, 113 N.C. App. 394, 439 S.E.2d 610 (1994).

As to the nonexclusivity of jurisdiction of the justice of the peace (now magistrate), see Stonestreet v. Means, 228 N.C. 113, 44 S.E.2d 600 (1947); Bryan v. Street, 209 N.C. 284, 183 S.E. 366 (1936).

Court Had No Jurisdiction Where Daughter Was Not a Tenant. - Where lease described mother as the head of the household and "Tenant," and where daughter was listed as a member of the household, trial court did not have subject matter jurisdiction under the summary ejectment statute to order daughter to vacate the housing unit since she was not a tenant; the court did have subject matter jurisdiction as to mother who was a tenant. Housing Auth. v. McCleain, 93 N.C. App. 735, 379 S.E.2d 104 (1989).

Dismissal of Appeal Where Defendants Had Surrendered Possession. - In a summary ejectment proceeding, under this and the following sections of this Article, where the subject of the litigation, the right of plaintiffs to immediate possession of premises, had been disposed of by the surrender of same by defendants to plaintiffs and no other question was raised in the court below, appeal would be dismissed. Cochran v. Rowe, 225 N.C. 645, 36 S.E.2d 75 (1945).

Third-Party as Defendant in Action for Recovery. - When, in an action for the recovery of real estate, both the plaintiff and a third-party claim to be the landlord of the defendant, the latter has a right, upon affidavit, to be let in as a party defendant to the action. Rollins v. Rollins, 76 N.C. 264 (1877).

Finality of Judgment Prerequisite for Exception to Automatic Stay Protection. - Judgment in an action for summary ejectment secured under North Carolina law that was still subject to appeal when a debtor filed a bankruptcy petition did not qualify as a judgment for possession under the Bankruptcy Code for purposes of an exception to an automatic stay protection because it was not a final and non-appealable court order. In re Nitzsky, 516 B.R. 846 (Bankr. W.D.N.C. 2014).

Applied in Stadiem v. Harvell, 208 N.C. 103, 179 S.E. 448 (1935); Lassiter v. Stell, 214 N.C. 391, 199 S.E. 409 (1938).

Cited in Texas Co. v. Beaufort Oil & Fuel Co., 199 N.C. 492, 154 S.E. 829 (1930); Seligson v. Klyman, 227 N.C. 347, 42 S.E.2d 220 (1947); Couch v. ADC Realty Corp., 48 N.C. App. 108, 268 S.E.2d 237 (1980); Swann v. Gastonia Hous. Auth., 675 F.2d 1342 (4th Cir. 1982); Satterfield v. Pappas, 67 N.C. App. 28, 312 S.E.2d 511 (1984); Cla-Mar Mgt. v. Harris, 76 N.C. App. 300, 332 S.E.2d 495 (1985); Woodridge Homes L.P. v. Gregory, 205 N.C. App. 365, 697 S.E.2d 370 (2010).

II. HOLDING OVER.

Constitutionality. - The summary ejectment procedure as set out in subdivision (1) of this section and G.S. 42-32 is not unconstitutional on grounds that subdivision (1) provides no defense whatsoever to a residential tenant of commercially owned property who holds over after being given notice that the term has expired or that the owner desires possession. Twin City Apts., Inc. v. Landrum, 45 N.C. App. 490, 263 S.E.2d 323 (1980).

Subdivision (1) of this section, as to a tenant holding over, was declared constitutional in Credle v. Gibbs, 65 N.C. 192 (1871).

Subdivision (1) of this section provides no defense because none exists. Once the estate of the lessee expires, the lessor, by virtue of his superior title, may resume possession by following proper procedures. Defendant's right to possession is protected by virtue of G.S. 42-35 and G.S. 42-36, which provide a remedy to the tenant if he is evicted, but later restored to possession. Twin City Apts., Inc. v. Landrum, 45 N.C. App. 490, 263 S.E.2d 323 (1980).

Effect of Recognition of Tenant Holding Over. - When a tenant for a year or a longer time holds over and is recognized as tenant by the landlord, without further agreement or other qualifying facts or circumstances, he becomes a tenant from year to year, and is subject to the payment of the rent and other stipulations of the lease as far as the same may be applied to existent conditions. Stedman v. McIntosh, 26 N.C. 291 (1844); Scheelky v. Koch, 119 N.C. 80, 25 S.E. 713 (1896); Harty v. Harris, 120 N.C. 408, 27 S.E. 90 (1897); Holton v. Andrews, 151 N.C. 340, 66 S.E. 212 (1909); Murrill v. Palmer, 164 N.C. 50, 80 S.E. 55 (1913).

The landlord may treat his tenant who holds over as a trespasser and eject him, or he may recognize him as a tenant; but when such recognition has been made, a presumption arises of a tenancy from year to year, and as stated, under the terms and stipulations of the lease as far as the same may apply. Murrill v. Palmer, 164 N.C. 50, 80 S.E. 55 (1913).

A mere acceptance of rents by the landlord does not create a tenancy from year to year, nor preclude the landlord from recovery of possession. In an action to recover the possession, as the plaintiff is entitled to damages for the occupation of the premises, the plaintiff can accept voluntary payments without thereby ratifying the tenant's possession. Vanderford v. Foreman, 129 N.C. 217, 39 S.E. 839 (1901).

Periodic Tenancy Created Where Rent Accepted and Tenant in Possession. - When a tenant enters into possession under an invalid lease and tenders rent which is accepted by the landlord, a periodic tenancy is created. The period of the tenancy is determined by the interval between rental payments. Kent v. Humphries, 303 N.C. 675, 281 S.E.2d 43 (1981).

When Holding Over Is Allowed. - It seems that it is not a wrongful holding over when the tenant has been compelled to continue his occupation of necessity; for instance, when he has remained in possession solely by reason of the sickness of himself or some member of his family, of such a character that removal could not be presently made without serious danger to the patient. Murrill v. Palmer, 164 N.C. 50, 80 S.E. 55 (1913).

Issue as to Holding Over. - The only question the court can try under subdivision (1) of this section is, "Was the defendant the tenant of the plaintiff, and does he hold over after the expiration of the tenancy?" McDonald v. Ingram, 124 N.C. 272, 32 S.E. 677 (1899); McIver v. Seaboard Airline R.R., 163 N.C. 544, 79 S.E. 1107 (1913).

III. BREACH OF PROVISION OF LEASE.

Condition Must Be in Lease. - A summary proceeding in ejectment begun during the lessee's term cannot be maintained where the contract of lease contained no condition, the breach of which would authorize a reentry by the lessor. The mere failure to pay rent upon "a lease at . . . . . . dollars a year, payable monthly" does not warrant such reentry. Meroney v. Wright, 81 N.C. 390 (1879).

Breach of a condition in a lease that the lessee should not use or permit the use of any portion of the premises for any unlawful purpose or purposes, without a provision in the lease automatically terminating the lease or reserving the right of reentry for breach of such condition, cannot be made the basis of summary ejectment, and a provision in the lease that should the landlord bring suit because of the breach of any covenant and prevail in such suit, the tenant should pay reasonable attorneys' fees, does not constitute a provision automatically terminating the lease for breach of such condition or preserve the right of reentry. Morris v. Austraw, 269 N.C. 218, 152 S.E.2d 155 (1967).

Except in cases where G.S. 42-3 writes into a lease a forfeiture upon failure of the lessee to pay the rent within 10 days after a demand is made by the lessor or his agent for all past due rent, with right of the lessor to enter and dispossess the lessee, a breach of the conditions of a lease between a landlord and tenant cannot be made the basis of summary ejectment unless the lease itself provides for termination of such breach or reserves the right of reentry for such breach. Morris v. Austraw, 269 N.C. 218, 152 S.E.2d 155 (1967).

Provisions for Termination on Receivership or Bankruptcy Are Not Void. - Provisions of a lease authorizing lessors to terminate the lease and repossess the property upon the appointment of a receiver for lessee or adjudication that lessee was a bankrupt were not void. Such provisions are not contrary to public policy, nor are they prohibited by statute. To the contrary, similar provisions are frequently inserted in leases, particularly when they are of long duration. Carson v. Imperial '400' Nat'l, Inc., 267 N.C. 229, 147 S.E.2d 898 (1966).

Relief from Automatic Stay to Enforce Order for Possession. - Landlord was granted relief from the automatic stay to enforce an order for possession that it obtained pursuant to G.S. 42-26, as a nonresidential lease was terminated prior to the commencement of a Chapter 11 case and thus, 11 U.S.C.S. § 365(c)(3) precluded the debtor from assuming or assigning the lease. There was cause to modify the stay, as no bankruptcy relief was available regarding the lease. In re Salon America, Inc., - Bankr. - (Bankr. M.D.N.C. Dec. 9, 2011).

When Breach Waived. - After breach by the tenant of his contract, acceptance of rent by the landlord which has accrued thereafter will prevent the landlord from insisting on forfeiture. Winder v. Martin, 183 N.C. 410, 111 S.E. 708 (1922).

Jury Decides Whether Landlord Waived Provisions. - Whether a landlord has waived provisions in lease agreement regarding the manner of renewal of the lease for another term is a question of fact to be decided by the jury, as is the application of the doctrine of estoppel. Wachovia Bank & Trust Co. v. Rubish, 50 N.C. App. 662, 275 S.E.2d 494, rev'd on other grounds, 306 N.C. 417, 293 S.E.2d 749 (1982).

Where defendant has been partially evicted, in order for him, in a summary action of ejectment, to retain possession of the leased premises by paying a reduction in the rental price fixed by his contract, he must prove that such eviction was caused by the plaintiff, or one acting under his authority, or one paramount in title, and upon failure of evidence of this character, his claim therefor is properly denied as a matter of law. Blomberg v. Evans, 194 N.C. 113, 138 S.E. 593 (1927).

Suit for Rescission Cannot Be Substituted on Appeal. - Where a verbal lease does not provide for its termination or reserve the right of reentry for breach by the tenant of stipulated conditions in regard to maintenance and operation of the property, breach of such conditions cannot be made the basis for summary ejectment, and issues of fraud in procuring the lease and willful breach of the conditions are erroneously submitted in the superior court upon appeal in such action, it not being permissible for a party to substitute on appeal a suit for rescission. Dees v. Apple, 207 N.C. 763, 178 S.E. 557 (1935).

Proper grounds existed for a summary ejectment proceeding, where the lease specified that if the rent was not paid within 15 days of the first of each month, the date on which the rent was due, the lessor would have the right to re-enter the premises after notifying the lessee of the forfeiture of the estate, and lessee had in fact breached this condition of the lease. Chrisalis Properties, Inc. v. Separate Quarters, Inc., 101 N.C. App. 81, 398 S.E.2d 628 (1990).

Eviction from Federally-Subsidized Housing. - Housing authority's request to summarily evict a tenant, under 42 U.S.C.S. § 1437d(l)(6), based on a guest's drug activity, was properly denied because (1) G.S. 42-26(a)(2) governed summary eviction, which required, inter alia, that the eviction not be unconscionable, and, (2) when the tenant was unaware of the guest's activity and did not condone or tolerate the activity, summary eviction would be unconscionable, as summary eviction would be shockingly unfair. E. Carolina Reg'l Hous. Auth. v. Lofton, 238 N.C. App. 42, 767 S.E.2d 63 (2014).

Opinions of Attorney General

Summary ejectment proceedings are a landlord's exclusive remedy to regain possession of his property; the General Assembly did not intend for other statutory provisions, such as G.S. 1-111, to apply to summary ejectment proceedings. See Opinion of Attorney General to Mr. Thurman B. Hampton, Secretary, Department of Crime Control and Public Safety, - N.C.A.G. - (February 10, 1995).

The only undertaking the General Assembly intended to require of the defendants is the rent undertaking that G.S. 42-34 provides they must make to suspend judgment when they appeal their cases to district court. See Opinion of Attorney General to Mr. Thurman B. Hampton, Secretary, Department of Crime Control and Public Safety, - N.C.A.G. - (February 10, 1995).

A summary ejectment action heard by a magistrate is an expedited judicial proceeding; under G.S. 7A-214, the trial of a small claim summary ejectment action is set no more than 30 days after the action is commenced. See Opinion of Attorney General to Mr. Thurman B. Hampton, Secretary, Department of Crime Control and Public Safety, - N.C.A.G. - (February 10, 1995).

Pleadings in small claim summary ejectment actions are the same as in other small claim actions. See Opinion of Attorney General to Mr. Thurman B. Hampton, Secretary, Safety, - N.C.A.G. - (February 10, 1995).

A defendant is not required to file any pleading at all to maintain a defense in a summary ejectment proceeding. See Opinion of Attorney General to Mr. Thurman B. Hampton, Secretary, Department of Crime Control and Public Safety, - N.C.A.G. - (February 10, 1995).

Defendants in summary ejectment actions are not required to post bond before pleading, pursuant to G.S. 1-111. See Opinion of Attorney General to Mr. Thurman B. Hampton, Secretary, Department of Crime Control and Public Safety, - N.C.A.G. - (February 10, 1995).

§ 42-26.1: Expired.

Editor's Note. - This section expired, pursuant to the terms of Session Laws 1991, c. 166, s. 3, on June 30, 1993.

§ 42-27. Local: Refusal to perform contract ground for dispossession.

When any tenant or cropper who enters into a contract for the rental of land for the current or ensuing year willfully neglects or refuses to perform the terms of his contract without just cause, he shall forfeit his right of possession to the premises. This section applies only to the following counties: Alamance, Alexander, Alleghany, Anson, Ashe, Beaufort, Bertie, Bladen, Brunswick, Burke, Cabarrus, Camden, Carteret, Caswell, Chatham, Chowan, Cleveland, Columbus, Craven, Cumberland, Currituck, Davidson, Duplin, Edgecombe, Forsyth, Franklin, Gaston, Gates, Greene, Guilford, Halifax, Harnett, Hertford, Hoke, Hyde, Jackson, Johnston, Jones, Lee, Lenoir, Martin, Mecklenburg, Montgomery, Moore, Nash, New Hanover, Northampton, Onslow, Pasquotank, Pender, Perquimans, Pitt, Polk, Randolph, Robeson, Rockingham, Rowan, Rutherford, Sampson, Stokes, Surry, Swain, Tyrrell, Union, Wake, Warren, Washington, Wayne, Wilson, Yadkin.

History

(4 Geo. II, c. 28; 1868-9, c. 156, s. 19; Code, ss. 1766, 1777; 1905, cc. 297, 299, 820; Rev., s. 2001, subsec. 4; 1907, cc. 43, 153; 1909, cc. 40, 550; C.S., s. 2366; Pub. Loc. Ex. Sess. 1924, c. 66; 1931, cc. 50, 194, 446; 1933, cc. 86, 485; 1935, c. 39; 1943, cc. 69, 115, 459; 1951, c. 279; 1953, c. 271; c. 499, s. 2; 1955, c. 93; 1961, c. 25; 1995 (Reg. Sess., 1996), c. 566, s. 1.)

§ 42-28. Summons issued by clerk.

When the lessor or his assignee files a complaint pursuant to G.S. 42-26 or 42-27, and asks to be put in possession of the leased premises, the clerk of superior court shall issue a summons requiring the defendant to appear at a certain time and place not to exceed seven days from the issuance of the summons, excluding weekends and legal holidays, to answer the complaint. The plaintiff may claim rent in arrears, and damages for the occupation of the premises since the cessation of the estate of the lessee, not to exceed the jurisdictional amount established by G.S. 7A-210(1), but if he omits to make such claim, he shall not be prejudiced thereby in any other action for their recovery.

History

(1868-9, c. 156, s. 20; 1869-70, c. 212; Code, s. 1767; Rev., s. 2002; C.S., s. 2367; 1971, c. 533, s. 4; 1973, c. 1267, s. 4; 1979, c. 144, s. 4; 1981, c. 555, s. 4; 1983, c. 332, s. 2; 1985, c. 329, s. 1; 1989, c. 311, s. 3; 1993, c. 553, s. 73(c); 1995, c. 460, s. 4.)

Legal Periodicals. - For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).

For note discussing preliminary injunctions in employment noncompetition cases in light of A.E.P. Industries, Inc. v. McClure, 308 N.C. 393, 302 S.E.2d 752 (1983), see 63 N.C.L. Rev. 222 (1984).

For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).

For note, "When A Hotel Is Your Home, Is There Protection?," see 15 Campbell L. Rev. 295 (1993).

CASE NOTES

This section prior to its 1971 amendment was not an exception to the requirements of G.S. 1-57. Choate Rental Co. v. Justice, 211 N.C. 54, 188 S.E. 609 (1936); Home Real Estate, Loan & Ins. Co. v. Locker, 214 N.C. 1, 197 S.E. 555 (1938).

Implication of Language "But If He Omits to Make Such Claim." - Although this section does not explicitly state that assertion of a claim for damages and past-due rents in the summary ejectment proceeding will bar a separate action for that claim, the necessary implication of the language "but if he omits to make such claim, he shall not be prejudiced thereby in any other action for their recovery" is that if the plaintiff does make such claims in the summary ejectment proceeding he shall be prejudiced in another action whereby he attempts to relitigate these claims. Chrisalis Properties, Inc. v. Separate Quarters, Inc., 101 N.C. App. 81, 398 S.E.2d 628 (1990), discretionary review denied, 328 N.C. 570, 403 S.E.2d 509 (1991).

All Damages Must Be Recovered in One Action. - The fact that this article specifically allows a lessor to bring an action to regain possession of the premises separate from an action for damages does not create an exception to the general rule that all damages must be recovered in one action. Chrisalis Properties, Inc. v. Separate Quarters, Inc., 101 N.C. App. 81, 398 S.E.2d 628 (1990), discretionary review denied, 328 N.C. 570, 403 S.E.2d 509 (1991).

No Res Judicata as to Damages. - Dismissal of an individual defendant with prejudice in an ejectment action did not operate as res judicata or collateral estoppel on the individual's liability in an action for damages, as G.S. 42-28 allowed a lessor to bring an action to regain possession of premises separately from an action for damages. N.C. Indus. Capital, LLC v. Clayton, 185 N.C. App. 356, 649 S.E.2d 14 (2007).

Applied in Rogers v. Hall, 227 N.C. 363, 42 S.E.2d 347 (1947); Morris v. Austraw, 269 N.C. 218, 152 S.E.2d 155 (1967).

Cited in Seligson v. Klyman, 227 N.C. 347, 42 S.E.2d 220 (1947).

§ 42-29. Service of summons.

The officer receiving the summons shall mail a copy of the summons and complaint to the defendant no later than the end of the next business day or as soon as practicable at the defendant's last known address in a stamped addressed envelope provided by the plaintiff to the action. The officer may, within five days of the issuance of the summons, attempt to telephone the defendant requesting that the defendant either personally visit the officer to accept service, or schedule an appointment for the defendant to receive delivery of service from the officer. If the officer does not attempt to telephone the defendant or the attempt is unsuccessful or does not result in service to the defendant, the officer shall make at least one visit to the place of abode of the defendant within five days of the issuance of the summons, but at least two days prior to the day the defendant is required to appear to answer the complaint, excluding legal holidays, at a time reasonably calculated to find the defendant at the place of abode to attempt personal delivery of service. He then shall deliver a copy of the summons together with a copy of the complaint to the defendant, or leave copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. If such service cannot be made the officer shall affix copies to some conspicuous part of the premises claimed and make due return showing compliance with this section.

History

(1868-9, c. 156, s. 21; Code, s. 1768; Rev., s. 2003; C.S., s. 2368; 1973, c. 87; 1983, c. 332, s. 1; 1985, c. 102; 1995, c. 460, s. 5; 2009-246, s. 1.)

Effect of Amendments. - Session Laws 2009-246, s. 1, effective October 1, 2009, and applicable to actions filed on or after that date, inserted "but at least two days prior to the day the defendant is required to appear to answer the complaint, excluding legal holidays," in the third sentence.

Opinions of Attorney General

Notice Not Adequate for Money Damages. - In a summary ejectment proceeding where the tenant does not make an appearance, the magistrate may not enter a money judgment for rents and other damages in addition to a order for possession where service of process was effected by first class mail and posting on the premises pursuant to this section. See opinion of Attorney General to Hon. Thomas N. Hix, Chief District Court Judge, 29th Judicial Circuit, 60 N.C.A.G. 95 (1992).

Because G.S. 7-217(4) states that the procedure found in this section can be used in summary ejectment cases only, and because summary ejectment is in the nature of an in rem proceeding, an in personam money damages claim cannot be heard and a money judgment cannot be entered in an action where service of process is effected through the alternative method under this section. The requirements for actual service of process found elsewhere in G.S. G.S. 7A-213 and in G.S. 1A-1, Rule 4 would still apply to the claim for rents and other money damages. See opinion of Attorney General to Hon. Thomas N. Hix, Chief District Court Judge, 29th Judicial Circuit, 60 N.C.A.G. 95 (1992).

§ 42-30. Judgment by confession, where plaintiff has proved case, or failure to appear.

The summons shall be returned according to its tenor, and if on its return it appears to have been duly served, and if (i) the plaintiff proves his case by a preponderance of the evidence, (ii) the defendant admits the allegations of the complaint, or (iii) the defendant fails to appear on the day of court, and the plaintiff requests in open court a judgment for possession based solely on the filed pleadings where the pleadings allege defendant's failure to pay rent as a breach of the lease for which reentry is allowed and the defendant has not filed a responsive pleading, the magistrate shall give judgment that the defendant be removed from, and the plaintiff be put in possession of, the demised premises; and if any rent or damages for the occupation of the premises after the cessation of the estate of the lessee, not exceeding the jurisdictional amount established by G.S. 7A-210(1), be claimed in the oath of the plaintiff as due and unpaid, the magistrate shall inquire thereof, and if supported by a preponderance of the evidence, give judgment as he may find the fact to be.

History

(1868-9, c. 156, s. 22; Code, s. 1769; Rev., s. 2004; C.S., s. 2369; 1971, c. 533, s. 5; 1973, c. 10; c. 1267, s. 4; 1979, c. 144, s. 5; 1981, c. 555, s. 5; 1985, c. 329, s. 1; 1989, c. 311, s. 4; 1993, c. 553, s. 73(d); 2005-423, s. 10.)

Effect of Amendments. - Session Laws 2005-423, s. 10, effective October 1, 2005, substituted "by confession, where plaintiff has proved case, or failure to appear" for "confession or where plaintiff has proved case" in the section heading; and inserted clause (i) and (ii) designations; inserted clause (iii) and inserted "if supported by a preponderance of the evidence" near the end of the section.

Legal Periodicals. - For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).

CASE NOTES

Where both plaintiff and an interpleading third-party claim to be landlords of defendant, if a judgment by default is taken against the tenant, no writ of possession can issue until determination of the controversy between plaintiff and the interpleading defendant. Rollins v. Rollins, 76 N.C. 264 (1877).

Restoring Tenant When Third Party Involved. - If in an action for the recovery of real estate in which a third person claiming as landlord of the defendant has been made a party defendant, judgment is taken against the tenant defendant and he is evicted, he is entitled to be restored to possession until determination of the controversy between the plaintiff and the interpleading defendant. Rollins v. Bishop, 76 N.C. 268 (1877).

Upon appeal, when the appeal is dismissed as to the tenant defendant, no writ of possession can issue from the justice's (now magistrate's) court until determination of the controversy between the plaintiff and the interpleading defendant. Rollins v. Henry, 76 N.C. 269 (1877).

Applied in Hassell v. Wilson, 44 N.C. App. 434, 261 S.E.2d 227 (1980).

Cited in Seligson v. Klyman, 227 N.C. 347, 42 S.E.2d 220 (1947).

Opinions of Attorney General

For a summary ejectment action to be processed as a small claim, the complaint must designate it as a small claim, and the action must be assigned to a magistrate. This practice is almost universal, and Article 3 of the Landlord and Tenant Act refers only to determinations in these cases being made in the first instance by magistrates. See Opinion of Attorney General to Mr. Thurman B. Hampton, Secretary, Department of Crime Control and Public Safety, - N.C.A.G. - (February 10, 1995).

§ 42-31. Trial by magistrate.

If the defendant by his answer denies any material allegation in the oath of the plaintiff, the magistrate shall hear the evidence and give judgment as he shall find the facts to be.

History

(1868-9, c. 156, s. 23; Code, s. 1770; Rev., s. 2005; C.S., s. 2370; 1971, c. 533, s. 6.)

Legal Periodicals. - For note discussing preliminary injunctions in employment noncompetition cases in light of A.E.P. Industries, Inc. v. McClure, 308 N.C. 393, 302 S.E.2d 752 (1983), see 63 N.C.L. Rev. 222 (1984).

CASE NOTES

Denial of Tenancy. - In a proceeding before a justice of the peace (now magistrate), where the defendant denies the alleged tenancy, it is the duty of the justice (now magistrate) to proceed and try the issue of tenancy. Foster v. Penry, 77 N.C. 160 (1877).

Title to Land. - The question of jurisdiction is not to be determined by matter set up in the answer, but the court should hear the evidence as to the issue of tenancy, and if the same is found for the landlord, an estoppel operates upon the tenant, and the title to the land is not drawn in controversy. Hahn v. Latham, 87 N.C. 172 (1882).

Jurisdiction. - If the defense involves the title to real estate, a justice of the peace (now magistrate) has no jurisdiction thereof, and should dismiss the proceeding. Forsythe v. Bullock, 74 N.C. 135 (1876).

Equitable Defense. - The tenant may set up in his answer any equitable defense which he may have to his landlord's claim. Forsythe v. Bullock, 74 N.C. 135 (1876).

Failure to Set Up Defense. - Where defendant failed to set up the defense that he was not a tenant, but held under an agreement to purchase, and it was decided that he was a tenant, he could not be heard to question the validity of the judgment, nor could he restrain its execution except in a direct proceeding to set it aside for fraud, etc. Isler v. Hart, 161 N.C. 499, 77 S.E. 681 (1913).

Provision for Renewal. - A provision for renewal in a lease is not itself a renewal so as to vest an estate, yet it gives an equity which may be set up as a defense in a summary proceeding in ejectment. McAdoo v. Callum Bros. & Co., 86 N.C. 419 (1882).

Res Judicata Effect of Judgment on Issue of Tenancy. - Where in proceedings in summary ejectment, on final judgment entered in the superior court, it was adjudicated that A was the tenant of B, which judgment was not appealed from, the matter was res judicata, and A could not maintain a suit for an injunction to restrain the execution of the judgment in the former action, or that he be kept in possession, or for an accounting, his remedy being to vacate the judgment for recognized equitable reasons in direct proceedings. Isler v. Hart, 161 N.C. 499, 77 S.E. 681 (1913).

Effect of Judgment for Tenant. - A judgment for a tenant in summary proceedings is not an estoppel on the landlord to the extent of precluding him from showing, in a subsequent action, advancements made prior to eviction to which he was entitled. Burwell v. Brodie, 134 N.C. 540, 47 S.E. 47 (1904).

Where a person has been enjoined from bringing actions on each installment of rent as vexatious, such person is not precluded by such injunction from issuing execution on a judgment taken in a summary action in ejectment for the recovery of the property after the expiration of the lease. Featherstone v. Carr, 134 N.C. 66, 46 S.E. 15 (1903).

Opinions of Attorney General

§ 42-32. Damages assessed to trial.

On appeal to the district court, the jury trying issues joined shall assess the damages of the plaintiff for the detention of his possession to the time of the trial in that court; and, if the jury finds that the detention was wrongful and that the appeal was without merit and taken for the purpose of delay, the plaintiff, in addition to any other damages allowed, shall be entitled to the amount of rent in arrears, or which may have accrued, to the time of trial in the district court. Judgment for the rent in arrears and for the damages assessed may, on motion, be rendered against the sureties to the appeal.

History

(1868-9, c. 156, s. 28; Code, s. 1775; Rev., s. 2006; C.S., s. 2371; 1945, c. 796; 1971, c. 533, s. 7; 1979, c. 820, s. 7.)

Legal Periodicals. - For a survey of 1977 constitutional law, see 56 N.C.L. Rev. 943 (1978).

For a survey of 1977 law on property, see 56 N.C.L. Rev. 1111 (1978).

CASE NOTES

Constitutionality. - As to the unconstitutionality of the scheme of this section, G.S. 42-34(b) and G.S. 1A-1, Rule 62(a), prior to amendment by Session Laws 1979, c. 820, see Usher v. Waters Ins. & Realty Co., 438 F. Supp. 1215 (W.D.N.C. 1977).

The summary ejectment procedure as set out in G.S. 42-26(1) and this section is not unconstitutional in that G.S. 42-26(1) provides no defense whatsoever to a residential tenant of commercially-owned property who holds over after being given notice that the term has expired or that the owner desires possession. Twin City Apts., Inc. v. Landrum, 45 N.C. App. 490, 263 S.E.2d 323 (1980).

Nonsuit upon Appeal on Payment of Damages. - Where there is an appeal from the justice of the peace (now magistrate) in ejectment, the jury shall assess all damages of the plaintiff to which he is entitled from the time of the unlawful detention to the time of the trial in the superior (now district) court, and upon the defendant's tendering the amount sued for and the costs to that time, a judgment as of nonsuit is properly allowed. Ryan v. Reynolds, 190 N.C. 563, 130 S.E. 156 (1925).

Liability of Surety. - The surety on a bond to stay execution on appeal from the judgment of a justice of the peace (now magistrate) rendered in summary proceedings in ejectment is liable for such rents and profits to the plaintiff as may accrue to the date of the trial in the superior (now district) court. Dunn v. Patrick, 156 N.C. 248, 72 S.E. 220 (1911).

Effect of Emergency Price Control Act. - Where rental value of premises was fixed by rent control office, local statutes authorizing collection of double rents or other damages did not entitle plaintiff to collect an amount exceeding the maximum rent fixed by the O.P.A. McGuinn v. McLain, 225 N.C. 750, 36 S.E.2d 377 (1945).

The fact that landlord obtained permission from rent control office of O.P.A. to institute action under local law for the possession of his property did not release the property from the provisions of the Emergency Price Control Act of 1942. McGuinn v. McLain, 225 N.C. 750, 36 S.E.2d 377 (1945).

Cited in Seligson v. Klyman, 227 N.C. 347, 42 S.E.2d 220 (1947).

§ 42-33. Rent and costs tendered by tenant.

If, in any action brought to recover the possession of demised premises upon a forfeiture for the nonpayment of rent, the tenant, before judgment given in such action, pays or tenders the rent due and the costs of the action, all further proceedings in such action shall cease. If the plaintiff further prosecutes his action, and the defendant pays into court for the use of the plaintiff a sum equal to that which shall be found to be due, and the costs, to the time of such payment, or to the time of a tender and refusal, if one has occurred, the defendant shall recover from the plaintiff all subsequent costs; the plaintiff shall be allowed to receive the sum paid into court for his use, and the proceedings shall be stayed.

History

(4 Geo. II, c. 28, s. 4; 1868-9, c. 156, s. 26; Code, s. 1773; Rev., s. 2007; C.S., s. 2372.)

Legal Periodicals. - For survey of 1980 property law, see 59 N.C.L. Rev. 1209 (1981).

CASE NOTES

This section was passed in the interest of the tenant. A landlord could bring an action after demand as required by the statute, when each installment of rent was due. The tenant had to pay the rent and costs before judgment or get out. This section was to protect the tenant from hasty eviction, while at the same time the landlord would obtain his rent and costs. Ryan v. Reynolds, 190 N.C. 563, 130 S.E. 156 (1925).

Applicability of Section. - The wording of this section makes it clear that the section applies not only to summary ejectment actions, but to any action brought to recover the possession of demised premises upon a forfeiture for the nonpayment of rent. Green v. Lybrand, 39 N.C. App. 56, 249 S.E.2d 443 (1978).

This section has no application if the terms of the lease provide that the lessor can terminate the lease upon nonpayment of the rent. Couch v. ADC Realty Corp., 48 N.C. App. 108, 268 S.E.2d 237 (1980).

This section applies to actions to recover possession of demised premises "upon a forfeiture for the nonpayment of rent" and not to actions to recover possession of property for one of the causes enumerated in G.S. 42-26. Seligson v. Klyman, 227 N.C. 347, 42 S.E.2d 220 (1947).

This section is construed in pari materia with G.S. 42-3. Charlotte Office Tower Assocs. v. Carolina SNS Corp., 89 N.C. App. 697, 366 S.E.2d 905 (1988).

G.S. 42-3 and this section are remedial in nature and will apply only where the parties' lease does not cover the issue of forfeiture of the lease term upon nonpayment of rent. Where the contracting parties have considered the issue, negotiated a response, and memorialized their response within the lease, the trial court appropriately should decline to apply these statutory provisions. Charlotte Office Tower Assocs. v. Carolina SNS Corp., 89 N.C. App. 697, 366 S.E.2d 905 (1988).

What Must Be Paid. - Under the provisions of this section the lessee in summary ejectment is given the right to tender or pay into court the amount of rent due under the lease to the time of the beginning of the action, with interest and costs, and upon his so doing, the proceedings will be stayed; and thus the exception of a lessor that all rents, whether due under the terms of the contract or not, should be included to the time of the dismissal of the action, was untenable. Ryan v. Reynolds, 190 N.C. 563, 130 S.E. 156 (1925).

Where a contract for the lease of land at a specified rent contains a provision giving to the lessee the right to take sand therefrom at a stated price, the lessor in ejectment cannot maintain the position that the lessee should tender or pay for the sand he may thus have used, under the provision of this section, as a part of the rental due by him, the contract being construed separately as to the two provisions. Ryan v. Reynolds, 190 N.C. 563, 130 S.E. 156 (1925).

Effect of Tender Where Term Has Not Expired. - Where, in an action in ejectment against a tenant for nonpayment of rent, the answer denies default and pleads tender of the rent, under this section, judgment on the pleadings in plaintiff's favor is properly denied, and the term not having expired, the tender of rent in arrears before judgment would bar the cause. Hoover v. Crotts, 232 N.C. 617, 61 S.E.2d 705 (1950).

Where during the hearing and before judgment on a petition under G.S. 42-3 for the forfeiture of a lease held by an insolvent corporation in the hands of a receiver, the receiver tendered to the petitioner all rents due, together with all costs lawfully incurred, as provided in this section, it was held that the petition was properly denied. Coleman v. Carolina Theatres, 195 N.C. 607, 143 S.E. 7 (1928).

Where lease provides that landlord shall have the option to declare the lease void upon failure of lessee to pay rent when due, and waives notice to vacate, lessee may not prevent forfeiture by tendering rents due upon the trial. Tucker v. Arrowood, 211 N.C. 118, 189 S.E. 180 (1937).

A tender by the tenant of rent accrued after termination of the lease does not preclude the landlord from recovering possession. Vanderford v. Foreman, 129 N.C. 217, 39 S.E. 839 (1901).

Effect of Acceptance of Rent. - Acceptance by the landlord of rent accruing after termination of lease, after suit for possession, does not create a tenancy from year to year, and does not preclude the landlord from recovery. Vanderford v. Forman, 129 N.C. 217, 39 S.E. 839 (1901).

Forfeiture by Breach of Covenant. - Unless there is an express provision for a forfeiture in a lease, a breach of a covenant does not work a forfeiture. Couch v. ADC Realty Corp., 48 N.C. App. 108, 268 S.E.2d 237 (1980).

Applied in Menache v. Atlantic Coast Mgt. Corp., 43 N.C. App. 733, 260 S.E.2d 100 (1979).

§ 42-34. Undertaking on appeal and order staying execution.

Upon appeal to the district court, either party may demand that the case be tried at the first session of the court after the appeal is docketed, but the presiding judge, in his discretion, may first try any pending case in which the rights of the parties or the public demand it. If the case has not been previously continued in district court, the court shall continue the case for an appropriate period of time if any party initiates discovery or files a motion to allow further pleadings pursuant to G.S. 7A-220 or G.S. 7A-229, or for summary judgment pursuant to Rule 56 of the Rules of Civil Procedure.
During an appeal to district court, it shall be sufficient to stay execution of a judgment for ejectment if the defendant appellant pays to the clerk of superior court any rent in arrears as determined by the magistrate and signs an undertaking that he or she will pay into the office of the clerk of superior court the amount of the tenant's share of the contract rent as it becomes due periodically after the judgment was entered and, where applicable, comply with subdivision (c) below. For the sole purpose of determining the amount of rent in arrears pursuant to a judgment for possession pursuant to G.S. 42-30(iii), the magistrate's determination shall be based upon (i) the available evidence presented to the magistrate or (ii) the amounts listed on the face of the filed Complaint in Summary Ejectment. Provided however, when the magistrate makes a finding in the record, based on evidence presented in court, that there is an actual dispute as to the amount of rent in arrears that is due and the magistrate specifies the specific amount of rent in arrears in dispute, in order to stay execution of a judgment for ejectment, the defendant appellant shall not be required to pay to the clerk of superior court the amount of rent in arrears found by the magistrate to be in dispute, even if the magistrate's judgment includes this amount in the amount of rent found to be in arrears. If a defendant appellant appeared at the hearing before the magistrate and the magistrate found an amount of rent in arrears that was not in dispute, and if an attorney representing the defendant appellant on appeal to the district court signs a pleading stating that there is evidence of an actual dispute as to the amount of rent in arrears, then the defendant appellant shall not be required to pay the rent in arrears alleged to be in dispute to stay execution of a judgment for ejectment pending appeal. Any magistrate, clerk, or district court judge shall order stay of execution upon the defendant appellant's paying the undisputed rent in arrears to the clerk and signing the undertaking. If either party disputes the amount of the payment or the due date in the undertaking, the aggrieved party may move for modification of the terms of the undertaking before the clerk of superior court or the district court. Upon such motion and upon notice to all interested parties, the clerk or court shall hold a hearing within 10 calendar days of the date the motion is filed and determine what modifications, if any, are appropriate. No writ of possession or other execution of the magistrate's judgment shall take place during the time the aggrieved party's motion for modification is pending before the clerk of court.
In an ejectment action based upon alleged nonpayment of rent where the judgment is entered more than five business days before the day when the next rent will be due under the lease, the appellant shall make an additional undertaking to stay execution pending appeal. Such additional undertaking shall be the payment of the prorated rent for the days between the day that the judgment was entered and the next day when the rent will be due under the lease.
Notwithstanding the provisions of subsection (b) of this section, an indigent defendant appellant, as set forth in G.S. 1-110, who prosecutes his or her appeal as an indigent and who meets the requirement of G.S. 1-288 shall pay the amount of the contract rent as it becomes periodically due as set forth in subsection (b) of this section, but shall not be required to pay rent in arrears as set forth in subsection (b) of this section in order to stay execution pending appeal.
The undertaking by the appellant and the order staying execution may be substantially in the following form:
Upon application of the plaintiff, the clerk of superior court shall pay to the plaintiff any amount of the rental payments paid by the defendant into the clerk's office which are not claimed by the defendant in any pleadings.
If the defendant fails to make a payment within five business days of the due date according to the undertaking and order staying execution, the clerk, upon application of the plaintiff, shall issue execution on the judgment for possession.
When it appears by stipulation executed by all of the parties or by final order of the court that the appeal has been resolved, the clerk of court shall disburse any accrued moneys of the undertaking remaining in the clerk's office according to the terms of the stipulation or order.

"State of North Carolina, "County of __________ "____________, Plaintiff vs. Bond to "____________, Defendant Stay Execution On Appeal to District Court "Now comes the defendant in the above entitled action and respectfully shows the court that judgment for summary ejectment was entered against the defendant and for the plaintiff on the ________ day of ________, ________, by the Magistrate. Defendant has appealed the judgment to the District Court. "Pursuant to the terms of the lease between plaintiff and defendant, defendant is obligated to pay rent in the amount of $________ per ________, due on the ________ day of each ________. "Where the payment of rent in arrears or an additional undertaking is required by G.S. 42-34, the defendant hereby tenders $________ to the Court as required. "Defendant hereby undertakes to pay the periodic rent hereinafter due according to the aforesaid terms of the lease and moves the Court to stay execution on the judgment for summary ejectment until this matter is heard on appeal by the District Court. "This the ________ day of ________, ________. ___________________________________________________________________ Defendant "Upon execution of the above bond, execution on said judgment for summary ejectment is hereby stayed until the action is heard on appeal in the District Court. If defendant fails to make any rental payment to the clerk's office within five business days of the due date, upon application of the plaintiff, the stay of execution shall dissolve and the sheriff may dispossess the defendant. "This ________ day of ________, ________. _______________________________________________________________________ Assistant Clerk of Superior Court."

History

(1868-9, c. 156, s. 25; 1883, c. 316; Code, s. 1772; Rev., s. 2008; C.S., s. 2373; 1921, c. 90; Ex. Sess., 1921, c. 17; 1933, c. 154; 1937, c. 294; 1949, c. 1159; 1971, c. 533, s. 8; 1979, c. 820, ss. 1-6; 1998-125, s. 1; 1999-456, s. 59; 2005-423, s. 11; 2009-279, s. 2; 2019-243, s. 16.)

Local Modification. - Burke: Pub. Loc. 1927, c. 57; Cabarrus, Craven, Davie, Granville, Iredell, Mecklenburg, Swain, Watauga: 1921, c. 90; Ex. Sess., 1921, c. 17.

Editor's Note. - Session Laws 1998-125, s. 3 provides that the Administrative Office of the Courts shall amend the Small Claims form entitled "Judgment In Action For Summary Ejectment" to provide for a block in the magistrate's findings to designate in accordance with G.S. 42-34(b) that either there is no actual dispute as to the amount of rent in arrears, or if there is an actual dispute of the amount of rent in arrears, the amount found to be in dispute.

Effect of Amendments. - Session Laws 2005-423, s. 11, effective October 1, 2005, in subsection (b), inserted "of the tenant's share" in the first sentence, added the second sentence and inserted "within 10 calendar days of the date the motion is filed" in the last sentence.

Session Laws 2009-279, s. 2, effective October 1, 2009, added the last sentence of subsection (b).

Session Laws 2019-243, s. 16, effective November 6, 2019, substituted "business" for "working" in subsection (c); and inserted "business" preceding "days of the due date" in the fifth paragraph of the form in subsection (d) and in subsection (f).

Legal Periodicals. - For a survey of 1977 constitutional law, see 56 N.C.L. Rev. 943 (1978).

For a survey of 1977 law on property, see 56 N.C.L. Rev. 1111 (1978).

For note discussing preliminary injunctions in employment noncompetition cases in light of A.E.P. Industries, Inc. v. McClure, 308 N.C. 393, 302 S.E.2d 752 (1983), see 63 N.C.L. Rev. 222 (1984).

See legislative survey, 21 Campbell L. Rev. 323 (1999).

CASE NOTES

Constitutionality. - As to the unconstitutionality of the scheme of subsection (b) of this section, G.S. 42-32, and G.S. 1A-1, Rule 62(a), prior to amendment by Session Laws 1979, c. 820, see Usher v. Waters Ins. & Realty Co., 438 F. Supp. 1215 (W.D.N.C. 1977).

Plaintiff was not required to comply with this section in order to perfect her appeal, because this section only provides the mechanism for an appellant to stay execution of the magistrate's judgment pending the appeal. Fairchild Properties v. Hall, 122 N.C. App. 286, 468 S.E.2d 605 (1996).

Discretion as to Surety. - On an application to a justice of the peace (now magistrate) for a suspension of execution after a recovery by a landlord against his tenant, the justice (now magistrate) has discretion as to the sufficiency of the surety, the exercise of which a judge will not review in the absence of any suggestion that the justice (now magistrate) acted dishonestly or capriciously. Steadman v. Jones, 65 N.C. 388 (1871).

Power to Increase Bond. - If the bonds should become impaired or if the litigation should become protracted to such an extent as to require additional security to protect the plaintiffs in their rents, then under this section the superior (now district) court can require additional security. Featherstone v. Carr, 132 N.C. 800, 44 S.E. 592 (1903).

Not only is it within the jurisdiction and power of the superior (now district) courts to have the bonds increased or strengthened, but under their general powers in equity they would have the right to take such action. Featherstone v. Carr, 132 N.C. 800, 44 S.E. 592 (1903).

No Provision for Waiver of Bond. - Examination of this section fails to disclose any provision for waiver of the bond to perfect the appeal. Caulder v. Durham Hous. Auth., 433 F.2d 998 (4th Cir. 1970), cert. denied, 401 U.S. 1003, 91 S. Ct. 1228, 28 L. Ed. 2d 539 (1971).

Judgment Prior to Action on Bond. - A bond with sureties, conditioned upon the payment of any judgment given in summary proceedings in ejectment, makes the obtaining of the judgment a condition precedent to a recovery thereon against the sureties; and the obtaining of such a judgment must be shown by proper averment and proof, or an action against the sureties will be premature. Blackmore v. Winders, 144 N.C. 212, 56 S.E. 874 (1907).

Prejudgment Interest. - In a suit for the breach of a lease, the lessor was entitled under G.S. 24-5 to prejudgment interest on payments withheld by the clerk of court under G.S. 42-34; the payments did not include interest and were not a final settlement, and the lessor was deprived of the use of its money while it was retained by the clerk. N.C. Indus. Capital, LLC v. Clayton, 185 N.C. App. 356, 649 S.E.2d 14 (2007).

As to precedence in trial prior to the 1971 amendment, see Roediger v. Sapos, 217 N.C. 95, 6 S.E.2d 801 (1940).

Late Fees Under Lease. - Commercial lessor that brought a suit for breach of the lease was not entitled to contractual late fees on sums that the lessee paid to the clerk of superior court under G.S. 42-34.1(b); the clerk's order was an "undertaking" under the statute, and thus the lease terms regarding late fees were no longer applicable. N.C. Indus. Capital, LLC v. Clayton, 185 N.C. App. 356, 649 S.E.2d 14 (2007).

Cited in Crockett v. Lowry, 8 N.C. App. 71, 173 S.E. 566 (1970); In re Nexus Communications, Inc., 55 Bankr. 596 (Bankr. E.D.N.C. 1985); Stanley v. Harvey, 90 N.C. App. 535, 369 S.E.2d 382 (1988).

Opinions of Attorney General

The only undertaking the General Assembly intended to require of summary ejectment defendants is the rent undertaking that this section provides they must make to suspend judgment when they appeal their cases to district court. See Opinion of Attorney General to Mr. Thurman B. Hampton, Secretary, Department of Crime Control and Public Safety, - N.C.A.G. - (February 10, 1995).

§ 42-34.1. Rent pending execution of judgment; post bond pending appeal.

If the judgment in district court is against the defendant appellant, it is sufficient to stay execution of the judgment during the 30-day time period for taking an appeal provided for in Rule 3 of the North Carolina Rules of Appellate Procedure if the defendant appellant posts a bond as provided in G.S. 42-34(b). No additional security under G.S. 1-292 is required. If the defendant appellant fails to make rental payments as provided in the undertaking within five business days of the day rent is due under the terms of the residential rental agreement, the clerk of superior court shall, upon application of the plaintiff appellee, immediately issue a writ of possession, and the sheriff shall dispossess the defendant appellant as provided in G.S. 42-36.2.
If the judgment in district court is against the defendant appellant and the defendant appellant does not appeal the judgment, the defendant appellant shall pay rent to the plaintiff for the time the defendant appellant remains in possession of the premises after the judgment is given. Rent shall be prorated if the judgment is executed before the day rent would become due under the terms of the lease. The clerk of court shall disburse any rent in arrears paid by the defendant appellant in accordance with a stipulation executed by all parties or, if there is no stipulation, in accordance with the judge's order.
If the judgment in district court is against the defendant appellant and the defendant appellant appeals the judgment, it is sufficient to stay execution of the judgment if the defendant appellant posts a bond as provided in G.S. 42-34(b). No additional security under G.S. 1-292 is required. If the defendant appellant fails to perfect the appeal or the appellate court upholds the judgment of the district court, the execution of the judgment shall proceed. The clerk of court shall not disburse any rent in arrears paid by the defendant appellant until all appeals have been resolved.

History

(1998-125, s. 2; 2012-17, s. 1; 2021-47, s. 8; 2021-88, s. 5.)

Editor's Note. - Session Laws 2021-47, s. 18, is a severability clause.

Effect of Amendments. - Session Laws 2012-17, s. 1, effective October 1, added subsection (a); redesignated former subsection (a) as subsection (a1); and added "and no additional security under G.S. 1-292 is required" at the end of the first sentence in subsection (b). For applicability, see editor's note.

Session Laws 2021-47, s. 8, effective June 18, 2021, substituted "five business days” for "five days” in subsection (a).

Session Laws 2021-88, s. 5, effective July 22, 2021, substituted "is sufficient" for "shall be sufficient" and "G.S. 42-34(b). No additional" for "G.S. 42-34(b), and no additional" in subsection (a); substituted "disburse" for "disperse" in subsection (a1); and substituted "is sufficient" for "shall be sufficient," "G.S. 42-34(b). No additional" for "G.S. 42-34(b), and no additional" and "disburse" for "disperse" in subsection (b).

§ 42-35. Restitution of tenant, if case quashed, etc., on appeal.

If the proceedings before the magistrate are brought before a district court and quashed, or judgment is given against the plaintiff, the district or other court in which final judgment is given shall, if necessary, restore the defendant to the possession, and issue such writs as are proper for that purpose.

History

(1868-9, c. 156, s. 27; Code, s. 1774; Rev., s. 2009; C.S., s. 2374; 1971, c. 533, s. 9.)

CASE NOTES

When Tenant Restored to Possession. - When a party is put out of possession of land, or is compelled to pay money, under a judgment which is afterwards reserved or set aside, the court will restore the party to the possession of the land, and give him a remedy for the money thus paid. Lytle v. Lytle, 94 N.C. 522 (1886).

The writ of restitution lies to restore a party to the possession of property of which he has been deprived by some erroneous process; but it will not be employed to put one in possession where he has not been ousted by the court, nor to take possession from one who has acquired it pending litigation, but not by virtue of any order, judgment or process therein. Durham & N.R.R. v. North Carolina R.R., 108 N.C. 304, 12 S.E. 983 (1891).

Writ as Part of Judgment. - Whenever a party is put out of possession by process of law, and the proceedings are adjudged void, an order for a writ of restitution is a part of the judgment. Perry v. Tupper, 70 N.C. 538 (1874); Meroney v. Wright, 84 N.C. 336 (1881).

Where on trial of summary ejectment before a justice of peace (now magistrate), judgment was rendered for the plaintiff, who was put into possession, and on appeal the superior (now district) court decided against the plaintiff, upon the ground that the lease had not terminated, the defendant was entitled to a writ of restitution as a part of the judgment in his favor. Meroney v. Wright, 84 N.C. 336 (1881).

Cited in Twin City Apts., Inc. v. Landrum, 45 N.C. App. 490, 263 S.E.2d 323 (1980).

§ 42-36. Damages to tenant for dispossession, if proceedings quashed, etc.

If, by order of the magistrate, the plaintiff is put in possession, and the proceedings shall afterwards be quashed or reversed, the defendant may recover damages of the plaintiff for his removal.

History

(1868-9, c. 156, s. 30; Code, s. 1776; Rev., s. 2010; C.S., s. 2375; 1971, c. 533, s. 10.)

CASE NOTES

Eviction of Tenant in Federally Subsidized Low-Income Housing Project. - A tenant in a federally subsidized low-income housing project has an "entitlement" to continued occupancy and cannot be evicted until certain procedural protections have been afforded him. Where a tenant, upon eviction, was not afforded Housing and Urban Development eviction procedures, tenant's tenancy continued as a month-to-month tenancy without interruption. Pursuant to this section, the damages of the tenant which proximately flowed from her wrongful eviction were the loss of her security deposit, her moving expenses, the cost of transfer and storage of her furniture, and the loss of her entitlement to federal rental subsidy payments from the time of her eviction until she obtained a reversal of the eviction order. Goler Metro. Apts., Inc. v. Williams, 43 N.C. App. 648, 260 S.E.2d 146 (1979), cert. denied, 299 N.C. 328, 265 S.E.2d 395 (1980).

Sufficient Allegations. - A complaint in an action by a tenant for wrongful eviction by summary proceedings, alleging that by reason thereof the tenant was deprived of his house and garden for the shelter and support of his family, and was distressed in body and mind and put to great mortification and shame and loss of employment, sufficiently alleged damages other than the loss of his crops. Burwell v. Brodie, 134 N.C. 540, 47 S.E. 47 (1904).

Assessment of Damages. - Under this section a tenant who secures the reversal of summary proceedings against him may have damages for eviction assessed in the original or in a separate action. Burwell v. Brodie, 134 N.C. 540, 47 S.E. 47 (1904).

Recovery by Landlord. - Where a landlord wrongfully evicts a tenant he can recover for advancements to the tenant before the eviction, but not for labor performed by himself after the eviction. Burwell v. Brodie, 134 N.C. 540, 47 S.E. 47 (1904).

Cited in Twin City Apts., Inc. v. Landrum, 45 N.C. App. 490, 263 S.E.2d 323 (1980).

§ 42-36.1. Lease or rental of manufactured homes.

The provisions of this Article shall apply to the lease or rental of manufactured homes, as defined in G.S. 143-145.

History

(1971, c. 764; 1985, c. 487, s. 8.)

§ 42-36.1A. Judgments for possession more than 30 days old.

Prior to obtaining execution of a judgment that has been entered for more than 30 days for possession of demised premises, a landlord shall sign an affidavit stating that the landlord has neither entered into a formal lease with the defendant nor accepted rental money from the defendant for any period of time after entry of the judgment.

History

(1995, c. 460, s. 7.)

§ 42-36.2. Notice to tenant of execution of writ for possession of property; storage of evicted tenant's personal property.

When Sheriff May Remove Property. - Before removing a tenant's personal property from demised premises pursuant to a writ for possession of real property or an order, the sheriff shall give the tenant notice of the approximate time the writ will be executed. The time within which the sheriff shall have to execute the writ shall be no more than five days from the sheriff's receipt thereof. The sheriff shall remove the tenant's property, as provided in the writ, no earlier than the time specified in the notice, unless:
1. The landlord, or his authorized agent, signs a statement saying that the tenant's property can remain on the premises, in which case the sheriff shall simply lock the premises; or
2. The landlord, or his authorized agent, signs a statement saying that the landlord does not want to eject the tenant because the tenant has paid all court costs charged to him and has satisfied his indebtedness to the landlord.
Sheriff May Store Property. - When the sheriff removes the personal property of an evicted tenant from demised premises pursuant to a writ or order the tenant shall take possession of his property. If the tenant fails or refuses to take possession of his property, the sheriff may deliver the property to any storage warehouse in the county, or in an adjoining county if no storage warehouse is located in that county, for storage. The sheriff may require the landlord to advance the cost of delivering the property to a storage warehouse plus the cost of one month's storage before delivering the property to a storage warehouse. If a landlord refuses to advance these costs when requested to do so by the sheriff, the sheriff shall not remove the tenant's property, but shall return the writ unexecuted to the issuing clerk of court with a notation thereon of his reason for not executing the writ. Except for the disposition of manufactured homes and their contents as provided in G.S. 42-25.9(g) and G.S. 44A-2(e2), within seven days of the landlord's being placed in lawful possession by execution of a writ of possession and upon the tenant's request within that seven-day period, the landlord shall release possession of the property to the tenant during regular business hours or at a time agreed upon. During the seven-day period after being placed in lawful possession by execution of a writ of possession, a landlord may move for storage purposes, but shall not throw away, dispose of, or sell any items of personal property remaining on the premises unless otherwise provided for in this Chapter. If, after being placed in lawful possession by execution of a writ, the landlord has offered to release the tenant's property and the tenant fails to retrieve such property during the landlord's regular business hours within seven days after execution of the writ, the landlord may throw away, dispose of, or sell the property in accordance with the provisions of G.S. 42-25.9(g). If the tenant does not request release of the property within seven days, all costs of summary ejectment, execution and storage proceedings shall be charged to the tenant as court costs and shall constitute a lien against the stored property or a claim against any remaining balance of the proceeds of a warehouseman's lien sale.
Liability of the Sheriff. - A sheriff who stores a tenant's property pursuant to this section and any person acting under the sheriff's direction, control, or employment shall be liable for any claims arising out of the willful or wanton negligence in storing the tenant's property.
Notice. - The notice required by subsection (a) shall, except in actions involving the lease of a space for a manufactured home as defined in G.S. 143-143.9(6), inform the tenant that failure to request possession of any property on the premises within seven days of execution may result in the property being thrown away, disposed of, or sold. Notice shall be made by one of the following methods:
1. By delivering a copy of the notice to the tenant or his authorized agent at least two days before the time stated in the notice for serving the writ;
2. By leaving a copy of the notice at the tenant's dwelling or usual place of abode with a person of suitable age and discretion who resides there at least two days before the time stated in the notice for serving the writ; or
3. By mailing a copy of the notice by first-class mail to the tenant at his last known address at least five days before the time stated in the notice for serving the writ.

Upon receipt of a statement described in subdivision (2) of this subsection, the sheriff shall return the writ unexecuted to the issuing clerk of court and shall make a notation on the writ of his reasons. The sheriff shall attach a copy of the landlord's statement to the writ. If the writ is returned unexecuted because the landlord signed a statement described in subdivision (2) of this subsection, the clerk shall make an entry of satisfaction on the judgment docket. If the sheriff padlocks, the costs of the proceeding shall be charged as part of the court costs.

History

(1983, c. 672, s. 1; 1995, c. 460, s. 6; 1999-278, ss. 3, 4; 2013-334, s. 5; 2015-55, s. 1.)

Effect of Amendments. - Session Laws 2013-334, s. 5, effective September 1, 2013, substituted "five days" for "seven days" in subsection (a); substituted "seven days" for "10 days" or similar language throughout subsection (b) and in subsection (d); and, in subsection (b), deleted the former seventh sentence, which read "After the expiration of the 10 day period, the landlord may throw away, dispose of, or sell the property in accordance with the provisions of G.S. 42-25.9(g)" and added the present seventh sentence. For applicability, see editor's note.

Session Laws 2015-55, s. 1, effective October 1, 2015, substituted "a statement described in subdivision (2) of this subsection" for "either statement by the landlord" in the ending paragraph of subsection (a).

CASE NOTES

Attempted Delivery Held Sufficient. - An attempt to deliver notice was sufficient where the evidence showed that the sheriff's department attempted to deliver notice of the writ two days prior to its execution and the party to be evicted evaded or prevented the delivery of the notice. Smithers v. Tru-Pak Moving Sys., 121 N.C. App. 542, 468 S.E.2d 410 (1996).

Conversion Not Found. - Where the evidence sufficiently demonstrated that defendant obtained plaintiff's personal property in accord with statutorily mandated procedures under G.S. 45-21.29(1) and this section, it did not convert plaintiff's property by removing and storing it. Smithers v. Tru-Pak Moving Sys., 121 N.C. App. 542, 468 S.E.2d 410 (1996).

§ 42-36.3. Death of residential tenant; landlord may file affidavit to remove personal property from the dwelling unit.

Notwithstanding any other provision of this Chapter, when a decedent who is the sole occupant of a dwelling unit dies leaving tangible personal property in the dwelling unit, the landlord may, instead of commencing a summary ejectment action, file an affidavit as provided in G.S. 28A-25-7.

History

(2012-17, s. 9.)

Editor's Note. - The reference to G.S. 28A-25-7 at the end of this section was originally added as G.S. 28A-25-1.2 and was redesignated as G.S. 28A-25-7 at the direction of the Revisor of Statutes.

ARTICLE 4. Forms.

§ 42-37: Repealed by Session Laws 1971, c. 533, s. 11.

ARTICLE 4A. Retaliatory Eviction.

Sec.

§ 42-37.1. Defense of retaliatory eviction.

It is the public policy of the State of North Carolina to protect tenants and other persons whose residence in the household is explicitly or implicitly known to the landlord, who seek to exercise their rights to decent, safe, and sanitary housing. Therefore, the following activities of such persons are protected by law:
1. A good faith complaint or request for repairs to the landlord, his employee, or his agent about conditions or defects in the premises that the landlord is obligated to repair under G.S. 42-42;
2. A good faith complaint to a government agency about a landlord's alleged violation of any health or safety law, or any regulation, code, ordinance, or State or federal law that regulates premises used for dwelling purposes;
3. A government authority's issuance of a formal complaint to a landlord concerning premises rented by a tenant;
4. A good faith attempt to exercise, secure or enforce any rights existing under a valid lease or rental agreement or under State or federal law; or
5. A good faith attempt to organize, join, or become otherwise involved with, any organization promoting or enforcing tenants' rights.
In an action for summary ejectment pursuant to G.S. 42-26, a tenant may raise the affirmative defense of retaliatory eviction and may present evidence that the landlord's action is substantially in response to the occurrence within 12 months of the filing of such action of one or more of the protected acts described in subsection (a) of this section.
Notwithstanding subsections (a) and (b) of this section, a landlord may prevail in an action for summary ejectment if:
1. The tenant breached the covenant to pay rent or any other substantial covenant of the lease for which the tenant may be evicted, and such breach is the reason for the eviction; or
2. In a case of a tenancy for a definite period of time where the tenant has no option to renew the lease, the tenant holds over after expiration of the term; or
3. The violation of G.S. 42-42 complained of was caused primarily by the willful or negligent conduct of the tenant, member of the tenant's household, or their guests or invitees; or
4. Compliance with the applicable building or housing code requires demolition or major alteration or remodeling that cannot be accomplished without completely displacing the tenant's household; or
5. The landlord seeks to recover possession on the basis of a good faith notice to quit the premises, which notice was delivered prior to the occurrence of any of the activities protected by subsections (a) and (b) of this section; or
6. The landlord seeks in good faith to recover possession at the end of the tenant's term for use as the landlord's own abode, to demolish or make major alterations or remodeling of the dwelling unit in a manner that requires the complete displacement of the tenant's household, or to terminate for at least six months the use of the property as a rental dwelling unit.

History

(1979, c. 807.)

Legal Periodicals. - For comment on landlords' eviction remedies in the light of Spinks v. Taylor, 303 N.C. 256, 278 S.E.2d 501 (1981), and the 1981 Act to clarify landlord eviction remedies in residential tenancies, see 60 N.C.L. Rev. 885 (1982).

For article discussing self-help residential eviction by landlords in light of the Landlord Eviction Remedies Act, see 13 N.C. Cent. L.J. 195 (1982).

For article, "Who Is a Tenant? The Correct Definition of the Status in North Carolina," see 21 N.C. Cent. L.J. 79 (1995).

For article, "Opportunity in a Pandemic: Ending the Eviction Cycle by Constitutionally Providing for Inclusionary Zoning with State-Enacted Land-Use Regulations," see 43 Campbell L. Rev. 375 (2021).

§ 42-37.2. Remedies.

If the court finds that an ejectment action is retaliatory, as defined by this Article, it shall deny the request for ejectment; provided, that a dismissal of the request for ejectment shall not prevent the landlord from receiving payments for rent due or any other appropriate judgment.
The rights and remedies created by this Article are supplementary to all existing common law and statutory rights and remedies.

History

(1979, c. 807.)

Legal Periodicals. - For article, "Who Is a Tenant? The Correct Definition of the Status in North Carolina," see 21 N.C. Cent. L.J. 79 (1995).

§ 42-37.3. Waiver.

Any waiver by a tenant or a member of his household of the rights and remedies created by this Article is void as contrary to public policy.

History

(1979, c. 807.)

ARTICLE 5. Residential Rental Agreements.

Sec.

§ 42-38. Application.

This Article determines the rights, obligations, and remedies under a rental agreement for a dwelling unit within this State.

History

(1977, c. 770, s. 1.)

Legal Periodicals. - For article, "North Carolina's Residential Rental Agreements Act: New Developments for Contract and Tort Liability in Landlord-Tenant Relations," see 56 N.C.L. Rev. 785 (1978).

For a survey of 1977 law on property, see 56 N.C.L. Rev. 1111 (1978).

For comment on landlords' eviction remedies in the light of Spinks v. Taylor, 303 N.C. 256, 278 S.E.2d 501 (1981), and the 1981 Act to clarify landlord eviction remedies in residential tenancies, see 60 N.C.L. Rev. 885 (1982).

For article discussing self-help residential eviction by landlords in light of the Landlord Eviction Remedies Act, see 13 N.C. Cent. L.J. 195 (1982).

For note, "Property Law - A Fresh Look at Contractual Tenant Remedies Under the North Carolina Residential Rental Agreements Act," see 10 Campbell L. Rev. 167 (1987).

For note, "North Carolina Adopts Expansive Tenant Remedies for Violations of the Implied Warranty of Habitability," see 66 N.C.L. Rev. 1276 (1988).

For note, "An Update on Contract Damages When the Landlord Breaches the Implied Warranty of Habitability: Surratt v. Newton and Allen v. Simmons," see 69 N.C.L. Rev. 1699 (1991).

For note, "When A Hotel Is Your Home, Is There Protection?," see 15 Campbell L. Rev. 295 (1993).

For essay, "Confusion Worse Confounded: The North Carolina Residential Rental Agreements Act," see 78 N.C.L. Rev. 539 (2000).

For article, "Searching for the Right Approach: Regulating Short-Term Rentals in North Carolina," see 96 N.C.L. Rev. 1821 (2018).

CASE NOTES

Article Creates New Standard of Care. - Passage of this Article, the Residential Rental Agreements Act, created a new standard of care owed by landlord to tenant in this State. Brooks v. Francis, 57 N.C. App. 556, 291 S.E.2d 889 (1982).

Implied warranty of habitability is co-extensive with this Article. Miller v. C.W. Myers Trading Post, Inc., 85 N.C. App. 362, 355 S.E.2d 189 (1987).

Implied Warranty of Habitability and Commercial Tenancy. - Doctrine of implied warranty of habitability did not apply to case involving commercial tenancy. K & S Enters. v. Kennedy Office Supply Co., 135 N.C. App. 260, 520 S.E.2d 122 (1999), aff'd, 351 N.C. 470, 527 S.E.2d 644 (2000).

The evidence that premises rented to tenant never met city code standard was sufficient to allow the jury to decide whether tenant was entitled to rent abatement. Allen v. Simmons, 99 N.C. App. 636, 394 S.E.2d 478 (1990).

Cited in Lenz v. Ridgewood Assocs., 55 N.C. App. 115, 284 S.E.2d 702 (1981); Simmons v. C.W. Myers Trading Post, Inc., 56 N.C. App. 549, 290 S.E.2d 710 (1982); Borders v. Newton, 68 N.C. App. 768, 315 S.E.2d 731 (1984); Surratt v. Newton, 99 N.C. App. 396, 393 S.E.2d 554 (1990); Creekside Apts. v. Poteat, 116 N.C. App. 26, 446 S.E.2d 826 (1994); Stikeleather Realty & Invs. Co. v. Broadway, 241 N.C. App. 152, 772 S.E.2d 107 (2015).

§ 42-39. Exclusions.

The provisions of this Article shall not apply to transient occupancy in a hotel, motel, or similar lodging subject to regulation by the Commission for Public Health.
The provisions of this Article shall not apply to vacation rentals entered into under Chapter 42A of the General Statutes.
Nothing in this Article shall apply to any dwelling furnished without charge or rent.

History

(1973, c. 476, s. 128; 1977, c. 770, ss. 1, 2; 1999-420, s. 3; 2007-182, s. 2.)

Effect of Amendments. - Session Laws 2007-182, s. 2, effective July 5, 2007, substituted "Commission for Public Health" for "Commission for Health Services" in subsection (a).

Legal Periodicals. - For note, "When A Hotel Is Your Home, Is There Protection?," see 15 Campbell L. Rev. 295 (1993).

CASE NOTES

This Article expressly excludes from its application "transient occupancy in a hotel, motel, or similar lodging subject to the regulation by the Commissioner for Health Services." Baker v. Rushing, 104 N.C. App. 240, 409 S.E.2d 108 (1991).

§ 42-40. Definitions.

For the purpose of this Article, the following definitions shall apply:

"Action" includes recoupment, counterclaim, defense, setoff, and any other proceeding including an action for possession.
"Premises" means a dwelling unit, including mobile homes or mobile home spaces, and the structure of which it is a part and facilities and appurtenances therein and grounds, areas, and facilities normally held out for the use of residential tenants.
"Landlord" means any owner and any rental management company, rental agency, or any other person having the actual or apparent authority of an agent to perform the duties imposed by this Article.
"Protected tenant" means a tenant or household member who is a victim of domestic violence under Chapter 50B of the General Statutes or sexual assault or stalking under Chapter 14 of the General Statutes.

History

(1977, c. 770, s. 1; 1979, c. 880, ss. 1, 2; 1999-420, s. 2; 2005-423, s. 5.)

Legal Periodicals. - For note, "When A Hotel Is Your Home, Is There Protection?," see 15 Campbell L. Rev. 295 (1993).

For essay, "Confusion Worse Confounded: The North Carolina Residential Rental Agreements Act," see 78 N.C.L. Rev. 539 (2000).

CASE NOTES

This Article provides protection to those persons occupying "a dwelling unit . . . normally held out for the use of residential tenants who are using the dwelling as their primary residence." Baker v. Rushing, 104 N.C. App. 240, 409 S.E.2d 108 (1991).

This section did not apply to an action involving personal injuries suffered by tenants when the deck of a rented beach cottage collapsed, as the house was not the tenants' primary residence. Conley v. Emerald Isle Realty, Inc., 350 N.C. 293, 513 S.E.2d 556 (1999).

Liability of Agent. - The broad, statutory definition of landlord makes irrelevant in determining the liability of an agent the common law distinction between disclosed and undisclosed principals. Thus a "person having the actual or apparent authority of an agent to perform the duties imposed" by this Article, would be subject to individual liability for plaintiffs' claim for breach of the implied warranty of habitability. Baker v. Rushing, 104 N.C. App. 240, 409 S.E.2d 108 (1991).

Whether agent who supervised the on-site manager of the building, gave him instructions on the daily operation of the premises, and had authority to order repairs and to put and keep the premises in a fit and habitable condition was "a person with the actual or apparent authority of an agent to perform the duties imposed" by this Article was a genuine issue of material fact. This evidence could support a finding that agent was a landlord as defined by this Article. Baker v. Rushing, 104 N.C. App. 240, 409 S.E.2d 108 (1991).

As agent/manager of property defendant had actual authority to repair and keep the premises in a fit and habitable condition and had failed to do so during plaintiff's tenancy; therefore, as landlord, defendant's violation of G.S. 42-42 subjected him to liability for rent abatement. Surratt v. Newton, 99 N.C. App. 396, 393 S.E.2d 554 (1990).

Plaintiff had a claim for rent abatement against landlord for the amount of rent paid, and no lesser measure of damages was recoverable against landlord merely because he was not the owner but was an agent. Surratt v. Newton, 99 N.C. App. 396, 393 S.E.2d 554 (1990).

Applicability to Vacation Home. - Subdivision (2) did not apply to a furnished vacation home as the home was not the tenants' primary residence. Conley v. Emerald Isle Realty, Inc., 130 N.C. App. 309, 502 S.E.2d 688 (1998), rev'd on other grounds, 350 N.C. 293, 513 S.E.2d 556 (1999).

Cited in Lenz v. Ridgewood Assocs., 55 N.C. App. 115, 284 S.E.2d 702 (1981); Campos-Brizuela v. Rocha Masonry, L.L.C., 216 N.C. App. 208, 716 S.E.2d 427 (2011).

§ 42-41. Mutuality of obligations.

The tenant's obligation to pay rent under the rental agreement or assignment and to comply with G.S. 42-43 and the landlord's obligation to comply with G.S. 42-42(a) shall be mutually dependent.

History

(1977, c. 770, s. 1.)

CASE NOTES

Rent Abatement Allowed for Unfit Apartment. - A tenant is liable only for the reasonable value, if any, of his use of the property in its defective condition while he remains in possession. Accordingly, a tenant may recover damages in the form of a rent abatement calculated as the difference between the fair rental value of the premises if as warranted (i.e., in full compliance with G.S. 42-42(a)) and the fair rental value of the premises in their unfit condition, for any period of the tenant's occupancy during which the finder of fact determines the premises were uninhabitable, plus any special or consequential damages alleged and proved. Miller v. C.W. Myers Trading Post, Inc., 85 N.C. App. 362, 355 S.E.2d 189 (1987).

Where the landlord breached the implied warranty of habitability under G.S. 42-42(a)(2), (3), the tenant was entitled to rent abatement under G.S. 42-41, and the trial court was to calculate the damages suffered by the tenant. Dean v. Hill, 171 N.C. App. 479, 615 S.E.2d 699 (2005).

Punitive Damages Recoverable Only Where Conduct Is Tortious. - Punitive damages are not recoverable in an action for a contractual remedy based on breach of an implied warranty of habitability when the breach neither constitutes nor is accompanied by tortious conduct. Miller v. C.W. Myers Trading Post, Inc., 85 N.C. App. 362, 355 S.E.2d 189 (1987).

Applied in Gardner v. Ebenezer, LLC, 190 N.C. App. 432, 660 S.E.2d 172 (2008).

§ 42-42. Landlord to provide fit premises.

The landlord shall:
1. Comply with the current applicable building and housing codes, whether enacted before or after October 1, 1977, to the extent required by the operation of such codes; no new requirement is imposed by this subdivision (a)(1) if a structure is exempt from a current building code.
2. Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.
3. Keep all common areas of the premises in safe condition.
4. Maintain in good and safe working order and promptly repair all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances supplied or required to be supplied by the landlord provided that notification of needed repairs is made to the landlord in writing by the tenant, except in emergency situations.
5. Provide operable smoke alarms, either battery-operated or electrical, having an Underwriters' Laboratories, Inc., listing or other equivalent national testing laboratory approval, and install the smoke alarms in accordance with either the standards of the National Fire Protection Association or the minimum protection designated in the manufacturer's instructions, which the landlord shall retain or provide as proof of compliance. The landlord shall replace or repair the smoke alarms within 15 days of receipt of notification if the landlord is notified of needed replacement or repairs in writing by the tenant. The landlord shall ensure that a smoke alarm is operable and in good repair at the beginning of each tenancy. Unless the landlord and the tenant have a written agreement to the contrary, the landlord shall place new batteries in a battery-operated smoke alarm at the beginning of a tenancy and the tenant shall replace the batteries as needed during the tenancy, except where the smoke alarm is a tamper-resistant, 10-year lithium battery smoke alarm as required by subdivision (5a) of this subsection. Failure of the tenant to replace the batteries as needed shall not be considered as negligence on the part of the tenant or the landlord.
6. After December 31, 2012, when installing a new smoke alarm or replacing an existing smoke alarm, install a tamper-resistant, 10-year lithium battery smoke alarm. However, the landlord shall not be required to install a tamper-resistant, 10-year lithium battery smoke alarm as required by this subdivision in either of the following circumstances:
  1. The dwelling unit is equipped with a hardwired smoke alarm with a battery backup.
  2. The dwelling unit is equipped with a smoke alarm combined with a carbon monoxide alarm that meets the requirements provided in subdivision (7) of this section.
7. If the landlord is charging for the cost of providing water or sewer service pursuant to G.S. 42-42.1 and has actual knowledge from either the supplying water system or other reliable source that water being supplied to tenants within the landlord's property exceeds a maximum contaminant level established pursuant to Article 10 of Chapter 130A of the General Statutes, provide notice that water being supplied exceeds a maximum contaminant level.
8. Provide a minimum of one operable carbon monoxide alarm per rental unit per level, either battery-operated or electrical, that is listed by a nationally recognized testing laboratory that is OSHA-approved to test and certify to American National Standards Institute/Underwriters Laboratories Standards ANSI/UL2034 or ANSI/UL2075, and install the carbon monoxide alarms in accordance with either the standards of the National Fire Protection Association or the minimum protection designated in the manufacturer's instructions, which the landlord shall retain or provide as proof of compliance. A landlord that installs one carbon monoxide alarm per rental unit per level shall be deemed to be in compliance with standards under this subdivision covering the location and number of alarms. The landlord shall replace or repair the carbon monoxide alarms within 15 days of receipt of notification if the landlord is notified of needed replacement or repairs in writing by the tenant. The landlord shall ensure that a carbon monoxide alarm is operable and in good repair at the beginning of each tenancy. Unless the landlord and the tenant have a written agreement to the contrary, the landlord shall place new batteries in a battery-operated carbon monoxide alarm at the beginning of a tenancy, and the tenant shall replace the batteries as needed during the tenancy. Failure of the tenant to replace the batteries as needed shall not be considered as negligence on the part of the tenant or the landlord. A carbon monoxide alarm may be combined with smoke alarms if the combined alarm does both of the following: (i) complies with ANSI/UL2034 or ANSI/UL2075 for carbon monoxide alarms and ANSI/UL217 for smoke alarms; and (ii) emits an alarm in a manner that clearly differentiates between detecting the presence of carbon monoxide and the presence of smoke. This subdivision applies only to dwelling units having a fossil-fuel burning heater, appliance, or fireplace, and in any dwelling unit having an attached garage. Any operable carbon monoxide detector installed before January 1, 2010, shall be deemed to be in compliance with this subdivision.
9. Within a reasonable period of time based upon the severity of the condition, repair or remedy any imminently dangerous condition on the premises after acquiring actual knowledge or receiving notice of the condition. Notwithstanding the landlord's repair or remedy of any imminently dangerous condition, the landlord may recover from the tenant the actual and reasonable costs of repairs that are the fault of the tenant. For purposes of this subdivision, the term "imminently dangerous condition" means any of the following:
  1. Unsafe wiring.
  2. Unsafe flooring or steps.
  3. Unsafe ceilings or roofs.
  4. Unsafe chimneys or flues.
  5. Lack of potable water.
  6. Lack of operable locks on all doors leading to the outside.
  7. Broken windows or lack of operable locks on all windows on the ground level.
  8. Lack of operable heating facilities capable of heating living areas to 65 degrees Fahrenheit when it is 20 degrees Fahrenheit outside from November 1 through March 31.
  9. Lack of an operable toilet.
  10. Lack of an operable bathtub or shower.
  11. Rat infestation as a result of defects in the structure that make the premises not impervious to rodents.
  12. Excessive standing water, sewage, or flooding problems caused by plumbing leaks or inadequate drainage that contribute to mosquito infestation or mold.
The landlord is not released of his obligations under any part of this section by the tenant's explicit or implicit acceptance of the landlord's failure to provide premises complying with this section, whether done before the lease was made, when it was made, or after it was made, unless a governmental subdivision imposes an impediment to repair for a specific period of time not to exceed six months. Notwithstanding the provisions of this subsection, the landlord and tenant are not prohibited from making a subsequent written contract wherein the tenant agrees to perform specified work on the premises, provided that said contract is supported by adequate consideration other than the letting of the premises and is not made with the purpose or effect of evading the landlord's obligations under this Article.

History

(1977, c. 770, s. 1; 1995, c. 111, s. 2; 1998-212, s. 17.16(i); 2004-143, s. 3; 2008-219, ss. 2, 6; 2009-279, s. 3; 2010-97, s. 6(a); 2012-92, s. 1.)

Editor's Note. - Session Laws 2008-219, s. 6, was codified as the last sentence of subdivision (a)(7) at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2004-143, s. 3, effective August 1, 2004, added subdivision (a)(6).

Session Laws 2008-219, s. 2, effective January 1, 2010, and applicable to residential rental agreements in effect on and after that date, added subdivision (a)(7).

Session Laws 2009-279, s. 3, effective October 1, 2009, added subdivision (a)(8).

Session Laws 2010-97, s. 6(a), effective July 20, 2010, substituted "burning heater, appliance, or fireplace, and in any dwelling unit having an attached garage" for "burning heater or appliance, fireplace, or an attached garage" in the next-to-last sentence in subdivision (a)(7).

Session Laws 2012-92, s. 1, effective December 31, 2012, substituted "alarms" for "detectors" and substituted "alarm" for "detector" throughout subdivisions (a)(5) and (a)(7); in the next to the last sentence of subdivision (a)(5), inserted "except where the smoke alarm is a tamper-resistant, 10-year lithium battery smoke alarm as required by subdivision (5a) of this subsection"; and added subdivision (a)(5a).

Legal Periodicals. - For note, "An Update on Contract Damages When the Landlord Breaches the Implied Warranty of Habitability: Surratt v. Newton and Allen v. Simmons," see 69 N.C.L. Rev. 1699 (1991).

For note, "When A Hotel Is Your Home, Is There Protection?," see 15 Campbell L. Rev. 295 (1993).

For article, "Who Is a Tenant? The Correct Definition of the Status in North Carolina," see 21 N.C. Cent. L.J. 79 (1995).

For essay, "Confusion Worse Confounded: The North Carolina Residential Rental Agreements Act," see 78 N.C.L. Rev. 539 (2000).

CASE NOTES

Nature of Landlord's Duty. - The duty owed by a landlord is not the duty to warn of unsafe conditions, but rather the duty to correct unsafe conditions. Allen v. Equity & Investors Mgt. Corp., 56 N.C. App. 706, 289 S.E.2d 623 (1982).

Subdivision (a)(2) of this section imposes not a duty to warn, but a duty to correct unfit conditions. Brooks v. Francis, 57 N.C. App. 556, 291 S.E.2d 889 (1982).

Grant of summary judgment in favor of the landlord was proper pursuant to G.S. 42-42(a)(4) because, where a landlord lacked knowledge of a hazardous condition created on his leased premises by his tenant, he could not have been held liable for harm caused to third parties by that condition. There was no evidence of defective conditions existed at the time the apartment was leased and the landlord had no knowledge of the planter area being potentially hazardous due to the tenant's alternations of it. Martin v. Kilauea Props., LLC, 214 N.C. App. 185, 715 S.E.2d 210 (2011).

This section did not supplant the landlords' common law duty to warn tenants of hazardous conditions of which landlords know or should know; therefore, the trial court erred when it dismissed plaintiff's claim against defendant-landlords where, prior to the house fire which killed one child and injured another, defendant-landlords never warned the tenants of the potential fire hazard and where they also failed to advise the tenants to vacate the premises because of the hazardous conditions. Prince v. Wright, 141 N.C. App. 262, 541 S.E.2d 191 (2000).

Compliance with subdivision (a)(1) insulates landlords from liability for building design or construction. Collingwood v. General Elec. Real Estate Equities, Inc., 89 N.C. App. 656, 366 S.E.2d 901 (1988), rev'd on other grounds, 324 N.C. 63, 376 S.E.2d 425 (1989).

Subdivision (a)(2) of this section does not alter the common law standard of ordinary and reasonable care. Bolkhir v. North Carolina State Univ., 321 N.C. 706, 365 S.E.2d 898 (1988).

Subdivisions (a)(2) and (a)(3) contemplate the repair or maintenance function and have no relevance to the construction and design of rented dwellings. Collingwood v. General Elec. Real Estate Equities, Inc., 89 N.C. App. 656, 366 S.E.2d 901 (1988), rev'd on other grounds, 324 N.C. 63, 376 S.E.2d 425 (1989).

North Carolina cases construing subdivision (a)(3) have applied it in context of safety maintenance of common areas. Collingwood v. General Elec. Real Estate Equities, Inc., 89 N.C. App. 656, 366 S.E.2d 901 (1988), rev'd on other grounds, 324 N.C. 63, 376 S.E.2d 425 (1989).

Where the conditions enumerated in subdivision (a)(4) of this section are the same conditions which render the premises unfit and uninhabitable no written notice is required under the statute. Surratt v. Newton, 99 N.C. App. 396, 393 S.E.2d 554 (1990).

While subdivision (a)(4) of this section does require written notification of needed repairs involving electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances supplied or required to be supplied by the landlord, the statute does not require written notification of these needed repairs if the repairs are necessary to put the premises in a fit and habitable condition or if the conditions constitute an emergency. Surratt v. Newton, 99 N.C. App. 396, 393 S.E.2d 554 (1990).

No Waiver of Right to Recover for Defect by Taking Possession. - The trial court's suggestion that defendant had waived any right to recover for the defect by taking possession of the premises with the knowledge of the heater's defect and repairs constituted an incorrect statement of the law under this section. Mendenhall-Moore Realtors v. Sedoris, 89 N.C. App. 486, 366 S.E.2d 534 (1988).

Defendant's subsequent acceptance of the premises while hot water heater had not been repaired did not waive defendant's rights to recover for the defect. Mendenhall-Moore Realtors v. Sedoris, 89 N.C. App. 486, 366 S.E.2d 534 (1988).

Tenant is entitled to decline taking possession of leased premises where a landlord fails to provide and maintain any services agreed upon at the time the lease was contracted. Mendenhall-Moore Realtors v. Sedoris, 89 N.C. App. 486, 366 S.E.2d 534 (1988).

Subdivisions (a)(2) and (a)(4) mean that when landlord has either expressed or implicitly agreed to provide service to or an appliance in demised property, same must be supplied or repaired in time for the tenant to take possession. In other words, this section entitles a tenant to the value of the bargain contained in the lease which includes full and adequate operation of services promised by the landlord. Mendenhall-Moore Realtors v. Sedoris, 89 N.C. App. 486, 366 S.E.2d 534 (1988).

Hot Water Not Required in Residential Premises. - The statute does not per se require the furnishing of hot water in residential premises. Mendenhall-Moore Realtors v. Sedoris, 89 N.C. App. 486, 366 S.E.2d 534 (1988).

A landlord has a duty to exercise due care in making repairs to leased premises. Bolkhir v. North Carolina State Univ., 321 N.C. 706, 365 S.E.2d 898 (1988).

Rental of premises for price that is "fair" or below fair rental value does not absolve the landlord of his statutory obligation to provide fit premises. The implied warranty of habitability entitles a tenant in possession of leased premises to the value of the premises as warranted, which may be greater than the rent agreed upon or paid. Miller v. C.W. Myers Trading Post, Inc., 85 N.C. App. 362, 355 S.E.2d 189 (1987).

"Switching" of Screen and Glass Panels in Door of Apartment. - In action brought by plaintiff as guardian ad litem for his injured son for injuries suffered when he pushed through a glass panel installed by defendant's employee on storm door of an apartment rented by plaintiff, the Industrial Commission could find and conclude that the replacement of the screen panel with glass by defendant's employee was not reasonably prudent conduct under the circumstances presented, as defendant's employee had actual knowledge that plaintiff's children habitually opened the door in question by pushing forcefully on the middle panel, and the Court of Appeals erred in reversing the Commission's resolution of the question. Bolkhir v. North Carolina State Univ., 321 N.C. 706, 365 S.E.2d 898 (1988).

Violation as Evidence of Negligence. - A residential landlord in North Carolina owes his tenant a statutory duty of exercising ordinary or reasonable care to maintain common areas of the leased premises in a safe condition, and a violation of that duty is evidence of negligence. O'Neal v. Kellett, 55 N.C. App. 225, 284 S.E.2d 707 (1981).

Since the duty to keep the common areas in a safe condition implies the duty to make reasonable inspection and to correct an unsafe condition which a reasonable inspection might reveal, such a breach of duty would constitute actionable negligence on defendants' part and would support a verdict for plaintiff. Lenz v. Ridgewood Assocs., 55 N.C. App. 115, 284 S.E.2d 702 (1981), cert. denied, 305 N.C. 300, 290 S.E.2d 702 (1982).

A violation of the duty to maintain the premises in a fit and habitable condition is evidence of negligence. Brooks v. Francis, 57 N.C. App. 556, 291 S.E.2d 889 (1982).

Violations of this section are evidence of negligence. Jackson v. Housing Auth., 73 N.C. App. 363, 326 S.E.2d 295 (1985), aff'd, 316 N.C. 259, 341 S.E.2d 523 (1986).

A violation of this statute amounts to evidence of negligence, not negligence per se, and as such requires the application of common law principles of negligence to determine a landlord's liability. Bradley v. Wachovia Bank & Trust Co., 90 N.C. App. 581, 369 S.E.2d 86 (1988).

Standard of Care Was Not Mere Compliance with Subdivision (a)(1). - Where complaint alleged that defendants were negligent in design and construction of apartment, where defendant argued standard of care was compliance with state and local building and housing codes, and where defendant pointed out that apartment's plans, specifications, materials, and construction conformed in all respects to subdivision (a)(1), compliance with statutory standard was only evidence of due care, and compliance with this section did not insulate landlords from liability for defects in building design or construction. Collingwood v. General Elec. Real Estate Equities, Inc., 324 N.C. 63, 376 S.E.2d 425 (1989).

Standard of reasonable care in the inspection and maintenance of leased property did not impose upon defendant lessor the duty to tear down walls for purposes of inspection without notice or any suggestion of a defective condition which allegedly was the cause of a house-destroying fire. Bradley v. Wachovia Bank & Trust Co., 90 N.C. App. 581, 369 S.E.2d 86 (1988).

Standard of Care as to Habitability. - Absent an express agreement to install or repair protective window screens, landlord not liable for injuries to child falling through window. Landlord has no common law duty to provide or maintain such screens. Mudusar v. V.G. Murray & Co., 100 N.C. App. 395, 396 S.E.2d 325 (1990).

As agent/manager of property defendant had actual authority to repair and keep the premises in a fit and habitable condition and had failed to do so during plaintiff's tenancy; therefore, as landlord, defendant's violation of this section subjected him to liability for rent abatement. Surratt v. Newton, 99 N.C. App. 396, 393 S.E.2d 554 (1990).

Breach of the Implied Warranty of Habitability. - Court's conclusion that the amount of rent owed by defendant abated in compensation for plaintiff's violations of housing code, pursuant to this section, mandated a further conclusion that plaintiff violated subsections (a)(1), (2), and (3) and hence breached the implied warranty of habitability. Creekside Apts. v. Poteat, 116 N.C. App. 26, 446 S.E.2d 826, cert. denied, 338 N.C. 308, 451 S.E.2d 632 (1994).

Trial court should have found in favor of the tenant in the tenant's breach of the implied warranty of habitability claim, pursuant to G.S. 42-42(a)(2), (3), as the flooring was unstable and there was a large hole in the floor, a large sewage leak from the neighbor caused a noxious smell, sparks emitted from a breaker box, and these problems violated the housing code. Dean v. Hill, 171 N.C. App. 479, 615 S.E.2d 699 (2005).

No Breach of Implied Warranty of Habitability. - Failure of landlord or building manager to install or maintain window screens not a breach of implied warranty of habitability since screens did comply with local housing code. Mudusar v. V.G. Murray & Co., 100 N.C. App. 395, 396 S.E.2d 325 (1990).

The proper measure of damages in a rent abatement action based on a breach of the implied warranty of habitability is the difference between the fair rental value of the property in a warranted condition and the fair rental value of the property in its unwarranted condition, provided, however, the damages do not exceed the total amount of rent paid by the tenant; and the tenant is entitled to any special and consequential damages alleged and proved. Von Pettis Realty, Inc. v. McKoy, 135 N.C. App. 206, 519 S.E.2d 546 (1999).

Tenant's Contributory Negligence Held a Jury Question. - In a civil action wherein a tenant was injured when he stepped into a hole under the landlord's control, it could not be said as a matter of law whether the surrounding circumstances - darkness, a growth of grass around the hole, the lapse of time between the tenant's prior awareness of the hole and his injury - were sufficient to excuse the tenant's alleged contributory negligence, and the issue of contributory negligence should have been decided by the jury. Baker v. Duhan, 75 N.C. App. 191, 330 S.E.2d 53 (1985).

Rent Abatement Allowed for Unfit Apartment. - A tenant is liable only for the reasonable value, if any, of his use of the property in its defective condition while he remains in possession. Accordingly, a tenant may recover damages in the form of a rent abatement calculated as the difference between the fair rental value of the premises if as warranted (i.e., in full compliance with subsection (a)) and the fair rental value of the premises in their unfit condition, for any period of the tenant's occupancy during which the finder of fact determines the premises were uninhabitable, plus any special or consequential damages alleged and proved. Miller v. C.W. Myers Trading Post, Inc., 85 N.C. App. 362, 355 S.E.2d 189 (1987).

Tenants may bring an action for breach of the implied warranty of habitability, seeking rent abatement, based on their landlord's noncompliance with subsection (a). The rent abatement is calculated as the difference between the fair rental value of the premises if as warranted (i.e., in full compliance with subsection (a)) and the fair rental value of the premises in their unfit condition ("as is") plus any special and consequential damages alleged and proved. Cotton v. Stanley, 86 N.C. App. 534, 358 S.E.2d 692, cert. denied, 321 N.C. 296, 362 S.E.2d 779 (1987).

Where the court should have found that plaintiff breached the implied warranty of habitability it was error to not award abatement damages to defendants for that breach. Creekside Apts. v. Poteat, 116 N.C. App. 26, 446 S.E.2d 826, cert. denied, 338 N.C. 308, 451 S.E.2d 632 (1994).

Efforts to Repair Did Not Preclude Rent Abatement. - Where plaintiff violated this section, the trial court could not deny rent abatements for two months because of plaintiff's reasonable efforts to repair during those months. Creekside Apts. v. Poteat, 116 N.C. App. 26, 446 S.E.2d 826, cert. denied, 338 N.C. 308, 451 S.E.2d 632 (1994).

Determination of Fair Rental Value of Premises in Calculating Rent Abatement. - The fair rental value of property may be determined by proof of what the premises would rent for in the open market, or by evidence of other facts from which the fair rental value of the premises may be determined; the "other facts" include the dilapidated condition of the premises - indirect evidence of fair rental value. Cotton v. Stanley, 86 N.C. App. 534, 358 S.E.2d 692, cert. denied, 321 N.C. 296, 362 S.E.2d 779 (1987).

Direct evidence of fair rental value is an opinion of what the premises would rent for on the open market from either an expert or a witness qualified by familiarity with the specific piece of property. Cotton v. Stanley, 86 N.C. App. 534, 358 S.E.2d 692, cert. denied, 321 N.C. 296, 362 S.E.2d 779 (1987).

A party is not required to put on direct evidence to show fair rental value. Cotton v. Stanley, 86 N.C. App. 534, 358 S.E.2d 692, cert. denied, 321 N.C. 296, 362 S.E.2d 779 (1987).

The rent agreed upon by the parties when entering into the lease is some evidence of the property's "as warranted" fair rental value, but it is not binding. Cotton v. Stanley, 86 N.C. App. 534, 358 S.E.2d 692, cert. denied, 321 N.C. 296, 362 S.E.2d 779 (1987).

The illegality of re-renting a unit on the open market does not automatically reduce the unit's fair rental value to zero. The measure of the unit's fair rental value is not the price at which the owner could lawfully rent the unit to a new tenant in the open market, but the price at which he could rent it if it were lawful for him to do so; thus, the trial court did not err by refusing to find the fair rental value of the plaintiffs' units was zero during the period of time between the repair deadline and the date of repair. Cotton v. Stanley, 86 N.C. App. 534, 358 S.E.2d 692, cert. denied, 321 N.C. 296, 362 S.E.2d 779 (1987).

Three-Year Statute of Limitations Governs Rent Abatement. - Rent abatement sought by plaintiffs under the Residential Rental Agreements Act, G.S. 42-38 et seq., a remedy which is not spelled out but which is implied from the statute, and which is not punitive but rather in the nature of a restitutionary remedy, was governed by three-year statute of limitations pursuant to G.S. 1-52(1) and (2). Miller v. C.W. Myers Trading Post, Inc., 85 N.C. App. 362, 355 S.E.2d 189 (1987).

Rent Abatement Erroneously Allowed. - Trial court erred, inter alia, in finding that a landlord violated the Residential Rental Agreements Act and in granting a tenant's claim for rent abatement because not only did the trial court fail to make findings as to whether the landlord knew or had reason to know the alarm provided by a broker was not new or in good or safe working order, but it also made no findings as to how failing to verify the operability of the smoke alarm and a carbon monoxide alarm rendered the premises unfit for human habitation, or how such unfitness devalued the fair rental value of the property such that the tenant was entitled to rent abatement. Stikeleather Realty & Invs. Co. v. Broadway, 241 N.C. App. 152, 772 S.E.2d 107 (2015).

Damages for Rent Abatement. - Damages for rent abatement can only include those amounts actually paid by plaintiff for substandard housing. Surratt v. Newton, 99 N.C. App. 396, 393 S.E.2d 554 (1990).

Nothing in the Residential Rental Agreement Act precludes a tenant from recovering damages for breach of the covenant of habitability where she has withheld rent; however, damages for rent abatement can only include those amounts actually paid by defendant for substandard housing. Allen v. Simmons, 99 N.C. App. 636, 394 S.E.2d 478 (1990).

Plaintiff had a claim for rent abatement against landlord for amount of rent paid, and no lesser measure of damages was recoverable against landlord merely because he was not the owner but was an agent. Surratt v. Newton, 99 N.C. App. 396, 393 S.E.2d 554 (1990).

Jury's award of $6,400.00 fell within the permissible range of damages in a rent abatement case, and the trial court therefore correctly denied plaintiff's motion for a new trial on the issue of damages. Von Pettis Realty, Inc. v. McKoy, 135 N.C. App. 206, 519 S.E.2d 546 (1999).

Consequential or Special Damages. - Damages for rent abatement are limited to the amount of rent actually paid by the tenant for the substandard housing, plus any additional special or consequential damages alleged and proved. Foy v. Spinks, 105 N.C. App. 534, 414 S.E.2d 87 (1992).

Violations of subsection (a) constitute a continuing offense. Thus, plaintiffs would be entitled to recover for any period of their occupancy (following the three-year limit of the statute of limitations) during which they could establish that the condition of the premises was substandard as measured by the statute, regardless of whether the conditions complained of first existed prior to that time. Miller v. C.W. Myers Trading Post, Inc., 85 N.C. App. 362, 355 S.E.2d 189 (1987).

Violation of Housing Code. - Where tenant found many of the conditions in her residence were in violation of the housing code at the time she moved in the house and that landlord's attempts at correcting those conditions were either unsuccessful or temporary, on these facts there was sufficient evidence to go to the jury on whether the house was uninhabitable during the period in which tenant did in fact pay rent. Allen v. Simmons, 99 N.C. App. 636, 394 S.E.2d 478 (1990).

Damage to Tenant's Personal Property. - Trial court did not err when it awarded damages for a broken windshield where a tenant informed the landlord that a tree in the yard of a rented home was rotten and that it posed a danger to her and her family; thereafter, the landlord took no action to remove the defective tree from the property, and during a storm, a limb broke off the tree and damaged the windshield of the tenant's car. Pierce v. Reichard, 163 N.C. App. 294, 593 S.E.2d 787 (2004).

Cited in Jackson v. Housing Auth., 73 N.C. 363, 341 S.E.2d 523 (1986); Conley v. Emerald Isle Realty, Inc., 350 N.C. 293, 513 S.E.2d 556 (1999); Wilson v. Jefferson-Green, Inc., 136 N.C. App. 824, 526 S.E.2d 506 (2000); Gardner v. Ebenezer, LLC, 190 N.C. App. 432, 660 S.E.2d 172 (2008); Lampkin v. Hous. Mgmt. Res., 220 N.C. App. 457, 725 S.E.2d 432 (2012); Lee v. Cooper, 253 N.C. App. 734, 801 S.E.2d 371 (2017).

§ 42-42.1. Water, electricity, and natural gas conservation.

For the purpose of encouraging water, electricity, and natural gas conservation, pursuant to a written rental agreement, a lessor may charge for the cost of providing water or sewer service to lessees pursuant to G.S. 62-110(g), electric service pursuant to G.S. 62-110(h), natural gas service pursuant to G.S. 62-110(i), or for electricity or natural gas used by a central system pursuant to G.S. 62-110(j).
The lessor may not disconnect or terminate the lessee's electric service, water or sewer services, or natural gas service, nor may the landlord terminate the lessee's receipt of the benefits of the use of a central system, due to the lessee's nonpayment of the amount due for electric service, water or sewer services, or natural gas service.

History

(2004-143, s. 4; 2011-252, s. 2; 2017-10, s. 2.2(a); 2017-172, s. 1; 2021-23, s. 27(a).)

Editor's Note. - Session Laws 2017-10, s. 5.1 , is a severabil- ity clause.

Effect of Amendments. - Session Laws 2011-252, s. 2, effective October 1, 2011, and applicable to leases entered into on or after that date, rewrote the section catchline, which formerly read: "Water Conservation"; in subsection (a), inserted "and electricity" and added "or electric service pursuant to G.S. 62-110(h)"; and in subsection (b), twice inserted "electric service or."

Session Laws 2017-10, s. 2.2(a), effective May 4, 2017, deleted "who occupy the same contiguous premises" following "water or sewer service to tenants" in subsection (a).

Session Laws 2017-172, s. 1, effective July 21, 2017, substituted "Water, electricity, and natural gas" for "Water and electricity" in the section heading; rewrote subsection (a) which formerly read: "For the purpose of encouraging water and electricity conservation, pursuant to a written rental agreement, a landlord may charge for the cost of providing water or sewer service to tenants who occupy the same contiguous premises pursuant to G.S. 62-110(g) or electric service pursuant to G.S. 62-110(h)."; rewrote subsection (b) which formerly read: "The landlord may not disconnect or terminate the tenant's electric service or water or sewer services due to the tenant's nonpayment of the amount due for electric service or water or sewer services."

Session Laws 2021-23, s. 27(a), effective October 1, 2021, inserted "or for electricity or natural gas used by a central system pursuant to G.S. 62-110(j)” in subsection (a); and inserted "nor may the landlord terminate the lessee's receipt of the benefits of the use of a central system” in subsection (b).

§ 42-42.2. Victim protection - nondiscrimination.

A landlord shall not terminate a tenancy, fail to renew a tenancy, refuse to enter into a rental agreement, or otherwise retaliate in the rental of a dwelling based substantially on: (i) the tenant, applicant, or a household member's status as a victim of domestic violence, sexual assault, or stalking; or (ii) the tenant or applicant having terminated a rental agreement under G.S. 42-45.1. Evidence provided to the landlord of domestic violence, sexual assault, or stalking may include any of the following:

Law enforcement, court, or federal agency records or files.
Documentation from a domestic violence or sexual assault program.
Documentation from a religious, medical, or other professional.

History

(2005-423, s. 6.)

Editor's Note. - This section was originally enacted by Session Laws 2005-423, s. 6, as G.S. 42-42.1 and was recodified as this section at the direction of the Revisor of Statutes.

§ 42-42.3. Victim protection - change locks.

If the perpetrator of domestic violence, sexual assault, or stalking is not a tenant in the same dwelling unit as the protected tenant, a tenant of a dwelling may give oral or written notice to the landlord that a protected tenant is a victim of domestic violence, sexual assault, or stalking and may request that the locks to the dwelling unit be changed. A protected tenant is not required to provide documentation of the domestic violence, sexual assault, or stalking to initiate the changing of the locks, pursuant to this subsection. A landlord who receives a request under this subsection shall change the locks to the protected tenant's dwelling unit or give the protected tenant permission to change the locks within 48 hours.
If the perpetrator of the domestic violence, sexual assault, or stalking is a tenant in the same dwelling unit as the victim, any tenant or protected tenant of a dwelling unit may give oral or written notice to the landlord that a protected tenant is a victim of domestic violence, sexual assault, or stalking and may request that the locks to the dwelling unit be changed. In these circumstances, the following shall apply:
1. Before the landlord or tenant changes the locks under this subsection, the tenant must provide the landlord with a copy of an order issued by a court that orders the perpetrator to stay away from the dwelling unit.
2. Unless a court order allows the perpetrator to return to the dwelling to retrieve personal belongings, the landlord has no duty under the rental agreement or by law to allow the perpetrator access to the dwelling unit, to provide keys to the perpetrator, or to provide the perpetrator access to the perpetrator's personal property within the dwelling unit once the landlord has been provided with a court order requiring the perpetrator to stay away from the dwelling. If a landlord complies with this section, the landlord is not liable for civil damages, to a perpetrator excluded from the dwelling unit, for loss of use of the dwelling unit or loss of use or damage to the perpetrator's personal property.
3. The perpetrator who has been excluded from the dwelling unit under this subsection remains liable under the lease with any other tenant of the dwelling unit for rent or damages to the dwelling unit.
The protected tenant shall bear the expense of changing the locks. If a landlord fails to act within the required time, the protected tenant may change the locks without the landlord's permission. If the protected tenant changes the locks, the protected tenant shall give a key to the new locks to the landlord within 48 hours of the locks being changed.

A landlord who receives a request under this subsection shall change the locks to the protected tenant's dwelling unit or give the protected tenant permission to change the locks within 72 hours.

History

(2005-423, s. 6.)

Editor's Note. - This section was originally enacted by Session Laws 2005-423, s. 6, as G.S. 42-42.2 and was recodified as this section at the direction of the Revisor of Statutes.

§ 42-43. Tenant to maintain dwelling unit.

The tenant shall:
1. Keep that part of the premises that the tenant occupies and uses as clean and safe as the conditions of the premises permit and cause no unsafe or unsanitary conditions in the common areas and remainder of the premises that the tenant uses.
2. Dispose of all ashes, rubbish, garbage, and other waste in a clean and safe manner.
3. Keep all plumbing fixtures in the dwelling unit or used by the tenant as clean as their condition permits.
4. Not deliberately or negligently destroy, deface, damage, or remove any part of the premises, nor render inoperable the smoke alarm or carbon monoxide alarm provided by the landlord, or knowingly permit any person to do so.
5. Comply with any and all obligations imposed upon the tenant by current applicable building and housing codes.
6. Be responsible for all damage, defacement, or removal of any property inside a dwelling unit in the tenant's exclusive control unless the damage, defacement or removal was due to ordinary wear and tear, acts of the landlord or the landlord's agent, defective products supplied or repairs authorized by the landlord, acts of third parties not invitees of the tenant, or natural forces.
7. Notify the landlord, in writing, of the need for replacement of or repairs to a smoke alarm or carbon monoxide alarm. The landlord shall ensure that a smoke alarm and carbon monoxide alarm are operable and in good repair at the beginning of each tenancy. Unless the landlord and the tenant have a written agreement to the contrary, the landlord shall place new batteries in a battery-operated smoke alarm and battery-operated carbon monoxide alarm at the beginning of a tenancy and the tenant shall replace the batteries as needed during the tenancy, except where the smoke alarm is a tamper-resistant, 10-year lithium battery smoke alarm as required by G.S. 42-42(a)(5a). Failure of the tenant to replace the batteries as needed shall not be considered as negligence on the part of the tenant or the landlord.
The landlord shall notify the tenant in writing of any breaches of the tenant's obligations under this section except in emergency situations.

History

(1977, c. 770, s. 1; 1995, c. 111, s. 3; 1998-212, s. 17.16(j); 2008-219, s. 3; 2012-92, s. 2.)

Effect of Amendments. - Session Laws 2008-219, s. 3, effective January 1, 2010, and applicable to residential rental agreements in effect on and after that date, inserted "or carbon monoxide detector" in subdivision (a)(4); and in subdivision (a)(7), inserted "or carbon monoxide detector" at the end of the first sentence, substituted "and carbon monoxide detector are" for "is" in the second sentence, and inserted "and battery-operated carbon monoxide detector" in the third sentence.

Session Laws 2012-92, s. 2, effective December 31, 2012, substituted "alarm" for "detector" throughout subdivisions (a)(4) and (a)(7); in the next to the last sentence of subdivision (a)(7), inserted "except where the smoke alarm is a tamper-resistant, 10-year lithium battery smoke alarm as required by G.S. 42-42(a)(5a)."

§ 42-44. General remedies, penalties, and limitations.

Any right or obligation declared by this Chapter is enforceable by civil action, in addition to other remedies of law and in equity.
If a landlord fails to provide, install, replace, or repair a smoke alarm under the provisions of G.S. 42-42(a)(5) or a carbon monoxide alarm under the provisions of G.S. 42-42(a)(7) within 30 days of having received written notice from the tenant or any agent of State or local government of the landlord's failure to do so, the landlord shall be responsible for an infraction and shall be subject to a fine of not more than two hundred fifty dollars ($250.00) for each violation. After December 31, 2012, if the landlord installs a new smoke alarm or replaces an existing smoke alarm, the smoke alarm shall be a tamper-resistant, 10-year lithium battery smoke alarm, except as provided in G.S. 42-42(a)(5a). The landlord may temporarily disconnect a smoke alarm or carbon monoxide alarm in a dwelling unit or common area for construction or rehabilitation activities when such activities are likely to activate the smoke alarm or carbon monoxide alarm or make it inactive.
If a smoke alarm or carbon monoxide alarm is disabled or damaged, other than through actions of the landlord, the landlord's agents, or acts of God, the tenant shall reimburse the landlord the reasonable and actual cost for repairing or replacing the smoke alarm or carbon monoxide alarm within 30 days of having received written notice from the landlord or any agent of State or local government of the need for the tenant to make such reimbursement. If the tenant fails to make reimbursement within 30 days, the tenant shall be responsible for an infraction and subject to a fine of not more than one hundred dollars ($100.00) for each violation. The tenant may temporarily disconnect a smoke alarm or carbon monoxide alarm in a dwelling unit to replace the batteries or when it has been inadvertently activated.
Repealed by Session Laws 1979, c. 820, s. 8.
The tenant may not unilaterally withhold rent prior to a judicial determination of a right to do so.
A real estate broker or firm as defined in G.S. 93A-2 managing a rental property on behalf of a landlord shall not be personally liable as a party in a civil action between the landlord and tenant solely because the real estate broker or firm fails to identify the landlord of the property in the rental agreement.
A violation of this Article shall not constitute negligence per se.

History

(1977, c. 770, s. 1; 1979, c. 820, s. 8; 1998-212, s. 17.16(k); 2008-219, s. 4; 2012-92, s. 3; 2016-98, s. 1.6.)

Editor's Note. - Session Laws 2016-98, s. 1.9, provides: "This Part becomes effective July 1, 2016. Nothing in this Part shall be construed as being applicable to or affecting any litigation pending on that date."

Effect of Amendments. - Session Laws 2008-219, s. 4, effective January 1, 2010, and applicable to residential rental agreements in effect on and after that date, in subsection (a1), inserted "or a carbon monoxide detector under the provisions of G.S. 42-42(a)(7)," and inserted "or carbon monoxide detector" twice; and inserted "or carbon monoxide detector" three times in subsection (a2).

Session Laws 2012-92, s. 3, effective December 31, 2012, substituted "alarm" for "detector" throughout subsections (a1) and (a2); and added the second sentence in subsection (a1).

Session Laws 2016-98, s. 1.6, added subsection (c1). See editor's note for effective date and applicability.

CASE NOTES

Common-Law Standards of Care Retained. - By providing that a violation of this article does not constitute negligence per se, the General Assembly left intact established common-law standards of ordinary and reasonable care, the violation being only evidence of negligence. Lenz v. Ridgewood Assocs., 55 N.C. App. 115, 284 S.E.2d 702 (1981), cert. denied, 305 N.C. 300, 290 S.E.2d 702 (1982).

By providing that a violation of this Article does not constitute negligence per se, the General Assembly left intact established common-law standards of ordinary and reasonable care. Brooks v. Francis, 57 N.C. App. 556, 291 S.E.2d 889 (1982).

Violation as Evidence of Negligence. - Violation of the duty to maintain premises in fit and habitable condition is evidence of negligence. Brooks v. Francis, 57 N.C. App. 556, 291 S.E.2d 889 (1982).

Rent Abatement Allowed for Unfit Apartment. - A tenant is liable only for the reasonable value, if any, of his use of the property in its defective condition while he remains in possession. Accordingly, a tenant may recover damages in the form of a rent abatement calculated as the difference between the fair rental value of the premises if as warranted (i.e., in full compliance with subsection (a)) and the fair rental value of the premises in their unfit condition, for any period of the tenant's occupancy during which the finder of fact determines the premises were uninhabitable, plus any special or consequential damages alleged and proved. Miller v. C.W. Myers Trading Post, Inc., 85 N.C. App. 362, 355 S.E.2d 189 (1987).

Damages for Rent Abatement. - Nothing in the Residential Rental Agreement Act precludes a tenant from recovering damages for breach of the covenant of habitability where she has withheld rent; however, damages for rent abatement can only include those amounts actually paid by defendant for substandard housing. Allen v. Simmons, 99 N.C. App. 636, 394 S.E.2d 478 (1990).

Directed Verdict Properly Entered on Issue of Fraud. - Where, prior to tenant's agreement to rent a house landlord's agent represented that he would make the needed repairs, and where the evidence showed that landlord agent did in fact make the repairs albeit not to the satisfaction of defendant, the court found no evidence that at the time of his promise landlord intended not to make the repairs he was promising to make, and properly entered directed verdict on the issue of fraud. Allen v. Simmons, 99 N.C. App. 636, 394 S.E.2d 478 (1990).

Housing Code Violations. - Where tenant found many of the conditions in her residence were in violation of the housing code at the time she moved in the house and that landlord's attempts at correcting those conditions were either unsuccessful or temporary, on these facts there was sufficient evidence to go to the jury on whether the house was uninhabitable during the period in which tenant did in fact pay rent. Allen v. Simmons, 99 N.C. App. 636, 394 S.E.2d 478 (1990).

Rent Money Paid by Tenants Under a Lease Belonged to the Owners. - Rent money paid by tenants under a lease belonged to the owners of the leased property; lawyers who agreed to receive the rent payment on behalf of their clients, the owners, were obligated to disburse the owners' funds to them on request and to not disclose the disbursement to the tenants. Thus, the tenants' suit against the lawyers, alleging a breach of a fiduciary obligation based on the disbursement of the rent money to the owners, was properly dismissed. Noblot v. Timmons, 177 N.C. App. 258, 628 S.E.2d 413 (2006).

Applied in Jackson v. Housing Auth., 73 N.C. App. 363, 326 S.E.2d 295 (1985).

Cited in Collingwood v. General Elec. Real Estate Equities, Inc., 324 N.C. 63, 376 S.E.2d 425 (1989).

§ 42-45. Early termination of rental agreement by military personnel, surviving family members, or lawful representative.

Any military technician under section 10216 of Title 10 of the United States Code who (i) is required to move pursuant to permanent change of station orders to depart 50 miles or more from the location of the dwelling unit, or (ii) is prematurely or involuntarily discharged or released from active duty with the Armed Forces of the United States, may terminate the member's rental agreement for a dwelling unit by providing the landlord with a written notice of termination to be effective on a date stated in the notice that is at least 30 days after the landlord's receipt of the notice. The notice to the landlord must be accompanied by either a copy of the official military orders or a written verification signed by the member's commanding officer.
Any military technician under section 10216 of Title 10 of the United States Code who is deployed with a military unit for a period of not less than 90 days may terminate the member's rental agreement for a dwelling unit by providing the landlord with a written notice of termination. The notice to the landlord must be accompanied by either a copy of the official military orders or a written verification signed by the member's commanding officer. Termination of a lease pursuant to this subsection is effective 30 days after the first date on which the next rental payment is due or 45 days after the landlord's receipt of the notice, whichever is shorter, and payable after the date on which the notice of termination is delivered.
Upon termination of a rental agreement under this section, the tenant is liable for the rent due under the rental agreement prorated to the effective date of the termination payable at such time as would have otherwise been required by the terms of the rental agreement. The tenant is not liable for any other rent or damages due to the early termination of the tenancy except the liquidated damages provided in subsection (b) of this section. If a member terminates the rental agreement pursuant to this section 14 or more days prior to occupancy, no damages or penalties of any kind shall be due.
If a military technician under section 10216 of Title 10 of the United States Code dies while on active duty, then an immediate family member, or a lawful representative of the member's estate, may terminate the member's rental agreement for a dwelling unit by providing the landlord with a written notice of termination to be effective on the date described in subsection (a1) of this section. A copy of the death certificate, official military personnel casualty report, or letter from the commanding officer verifying the member's death must accompany the notice for this subsection to be effective. Termination of the member's lease obligations under this subsection shall also terminate the lease obligations of any cotenants who are immediate family members. If the member was a cotenant with a person who is not an immediate family member, then the termination shall relate only to the obligation of the member under the rental agreement. The prorated charges in subsection (a2) of this section and the liquidated damages provisions of subsection (b) of this section shall apply to any claims against the member's estate.
In consideration of early termination of the rental agreement, the tenant is liable to the landlord for liquidated damages provided the tenant has completed less than nine months of the tenancy and the landlord has suffered actual damages due to loss of the tenancy. The liquidated damages shall be in an amount no greater than one month's rent if the tenant has completed less than six months of the tenancy as of the effective date of termination, or one-half of one month's rent if the tenant has completed at least six but less than nine months of the tenancy as of the effective date of termination.
The provisions of this section may not be waived or modified by the agreement of the parties under any circumstances. Nothing in this section shall affect the rights established by G.S. 42-3.

History

(1987, c. 478, s. 1; 2005-445, s. 4.1; 2011-183, s. 29(a), (b); 2012-64, s. 1; 2017-156, s. 2; 2019-161, s. 1(d).)

Editor's Note. - Session Laws 2017-156, s. 3, made the amendment to this section by Session Laws 2017-156, s. 2, effective July 21, 2017, and applicable to lease agreements entered into on or after that date.

Session Laws 2019-161, s. 1(e), made the amendment of subsections (a), (a1) and (a3) of this section by Session Laws 2019-161, s. 1(d), effective October 1, 2019, and applicable to contracts entered into, renewed, or modified on or after that date.

Effect of Amendments. - Session Laws 2011-183, ss. 29(a) and 29(b), effective June 20, 2011, twice in subsection (a) and once in subsection (a1), substituted "Armed Forces of the United States" for "United States Armed Forces" and made minor stylistic changes.

Session Laws 2012-64, s. 1, effective June 26, 2012, added "surviving family members, or lawful representative" to the end of the section heading; and added subsection (a3).

Session Laws 2017-156, s. 2, added "the Active Guard and Reserve under section 101 of Title 10 of the United States Code, or a military technician under section 10216 of Title 10 of the United States Code" following "Any member of the Armed Forces of the United States" and made related punctuation changes throughout the section. For effective date and applicability, see editor's note.

Session Laws 2019-161, s. 1(d), deleted "member of the Armed Forces of the United States, the Active Guard and Reserve under section 101 of Title 10 of the United States Code, or a" preceding "military technician" in subsections (a), (a1) and (a3). For effective date and applicability, see editor's note.

§ 42-45.1. Early termination of rental agreement by victims of domestic violence, sexual assault, or stalking.

Any protected tenant may terminate his or her rental agreement for a dwelling unit by providing the landlord with a written notice of termination to be effective on a date stated in the notice that is at least 30 days after the landlord's receipt of the notice. The notice to the landlord shall be accompanied by either: (i) a copy of a valid order of protection issued by a court pursuant to Chapter 50B or 50C of the General Statutes, other than an ex parte order, (ii) a criminal order that restrains a person from contact with a protected tenant, or (iii) a valid Address Confidentiality Program card issued pursuant to G.S. 15C-4 to the victim or a minor member of the tenant's household. A victim of domestic violence or sexual assault must submit a copy of a safety plan with the notice to terminate. The safety plan, dated during the term of the tenancy to be terminated, must be provided by a domestic violence or sexual assault program which substantially complies with the requirements set forth in G.S. 50B-9 and must recommend relocation of the protected tenant.
Upon termination of a rental agreement under this section, the tenant who is released from the rental agreement pursuant to subsection (a) of this section is liable for the rent due under the rental agreement prorated to the effective date of the termination and payable at the time that would have been required by the terms of the rental agreement. The tenant is not liable for any other rent or fees due only to the early termination of the tenancy. If, pursuant to this section, a tenant terminates the rental agreement 14 days or more before occupancy, the tenant is not subject to any damages or penalties.
Notwithstanding the release of a protected tenant from a rental agreement under subsection (a) of this section, or the exclusion of a perpetrator of domestic violence, sexual assault, or stalking by court order, if there are any remaining tenants residing in the dwelling unit, the tenancy shall continue for those tenants. The perpetrator who has been excluded from the dwelling unit under court order remains liable under the lease with any other tenant of the dwelling unit for rent or damages to the dwelling unit.
The provisions of this section may not be waived or modified by agreement of the parties.

History

(2005-423, s. 7.)

§ 42-45.2. Early termination of rental agreement by tenants residing in certain foreclosed property.

Any tenant who resides in residential real property containing less than 15 rental units that is being sold in a foreclosure proceeding under Article 2A of Chapter 45 of the General Statutes may terminate the rental agreement for the dwelling unit after receiving notice pursuant to G.S. 45-21.17(4) by providing the landlord with a written notice of termination to be effective on a date stated in the notice of termination that is at least 10 days, but no more than 90 days, after the sale date contained in the notice of sale, provided that the mortgagor has not cured the default at the time the tenant provides the notice of termination. Upon termination of a rental agreement under this section, the tenant is liable for the rent due under the rental agreement prorated to the effective date of the termination payable at the time that would have been required by the terms of the rental agreement. The tenant is not liable for any other rent or damages due only to the early termination of the tenancy.

History

(2007-353, s. 3; 2015-178, s. 1(b); 2017-102, s. 35.1.)

Effect of Amendments. - Session Laws 2015-178, s. 1(b), effective October 1, 2015, rewrote the first sentence of the section. For applicability, see editor's note.

Session Laws 2017-102, s. 35.1, effective July 12, 2017, deleted "military and" before "tenants" in the section heading.

§ 42-46. Authorized fees, costs, and expenses.

Late Fee. - In all residential rental agreements in which a definite time for the payment of the rent is fixed, the parties may agree to a late fee not inconsistent with the provisions of this subsection, to be chargeable only if any rental payment is five days or more late. If the rent:
1. Is due in monthly installments, a landlord may charge a late fee not to exceed fifteen dollars ($15.00) or five percent (5%) of the monthly rent, whichever is greater.
2. Is due in weekly installments, a landlord may charge a late fee not to exceed four dollars ($4.00) or five percent (5%) of the weekly rent, whichever is greater.
3. Repealed by Session Laws 2009-279, s. 4, effective October 1, 2009, and applicable to leases entered into on or after that date.
A late fee under subsection (a) of this section may be imposed only one time for each late rental payment. A late fee for a specific late rental payment may not be deducted from a subsequent rental payment so as to cause the subsequent rental payment to be in default.
Repealed by Session Laws 2009-279, s. 4, effective October 1, 2009, and applicable to leases entered into on or after that date.
A lessor shall not charge a late fee to a lessee pursuant to subsection (a) of this section because of the lessee's failure to pay for water or sewer services provided pursuant to G.S. 62-110(g).
Complaint-Filing Fee. - Pursuant to a written lease, a landlord may charge an administrative complaint-filing fee not to exceed fifteen dollars ($15.00) or five percent (5%) of the monthly rent, whichever is greater, only if the tenant was in default of the lease, the landlord filed and served a complaint for summary ejectment and/or money owed, the tenant cured the default or claim, and the landlord dismissed the complaint prior to judgment. The landlord can include this fee in the amount required to cure the default.
Court-Appearance Fee. - Pursuant to a written lease, a landlord may charge an administrative court-appearance fee in an amount equal to ten percent (10%) of the monthly rent only if the tenant was in default of the lease and the landlord filed, served, and prosecuted successfully a complaint for summary ejectment and/or monies owed in the small claims court. If the tenant appeals the judgment of the magistrate, and the magistrate's judgment is vacated, any fee awarded by a magistrate to the landlord under this subsection shall be vacated.
Second Trial Fee. - Pursuant to a written lease, a landlord may charge a second administrative trial fee for a new trial following an appeal from the judgment of a magistrate. To qualify for the fee, the landlord must prove that the tenant was in default of the lease and the landlord prevailed. The landlord's fee may not exceed twelve percent (12%) of the monthly rent in the lease.
Limitations on Charging and Collection of Administrative Fees and Out-of-Pocket Expenses and Litigation Costs. -
1. A landlord who claims administrative fees under subsections (e) through (g) of this section is entitled to charge and retain only one of the above fees for the landlord's complaint for summary ejectment and/or money owed.
2. A landlord who earns an administrative fee under subsections (e) through (g) of this section may not deduct payment of that fee from a tenant's subsequent rent payment or declare a failure to pay the fee as a default of the lease for a subsequent summary ejectment action.
3. It is contrary to public policy for a landlord to put in a lease or claim any administrative fee for filing a complaint for summary ejectment and/or money owed other than the ones expressly authorized by subsections (e) through (g) of this section. This limitation does not apply to out-of-pocket expenses or litigation costs.
4. It is contrary to public policy for a landlord to claim, or for a lease to provide for the payment of, any out-of-pocket expenses or litigation costs for filing a complaint for summary ejectment and/or money owed other than those expressly authorized under subsection (i) of this section.
5. Any provision of a residential rental agreement contrary to the provisions of this section is against the public policy of this State and therefore void and unenforceable.
6. If the rent is subsidized by the United States Department of Housing and Urban Development, by the United States Department of Agriculture, by a State agency, by a public housing authority, or by a local government, any fee charged pursuant to this section shall be calculated on the tenant's share of the contract rent only, and the rent subsidy shall not be included.
Out-of-Pocket Expenses and Litigation Costs. - In addition to the late fees referenced in subsections (a) and (b) of this section and the administrative fees of a landlord referenced in subsections (e) through (g) of this section, a landlord also is permitted to charge and recover from a tenant the following actual out-of-pocket expenses:
1. Filing fees charged by the court.
2. Costs for service of process pursuant to G.S. 1A-1, Rule 4 of the North Carolina Rules of Civil Procedure and G.S. 42-29.
3. Reasonable attorneys' fees actually paid or owed, pursuant to a written lease, not to exceed fifteen percent (15%) of the amount owed by the tenant, or fifteen percent (15%) of the monthly rent stated in the lease if the eviction is based on a default other than the nonpayment of rent.
The out-of-pocket expenses and litigation costs listed in subsection (i) of this section are allowed to be included by the landlord in the amount required to cure a default.
As used in this section, the term "administrative fees" does not include out-of-pocket expenses, litigation costs, or other fees.

History

(1987, c. 530, s. 1; 2001-502, s. 4; 2003-370, s. 1; 2004-143, s. 5; 2009-279, s. 4; 2016-98, s. 1.7; 2018-50, s. 1.1; 2021-71, s. 1.1.)

Session Laws 2021-71, s. 1.2, made the amendment of this section by Session Laws 2021-71, s. 1.1, effective July 2, 2021, and further provides that it "is intended to apply retroactively to all pending controversies as of that date. The amendments contained in this Part [Part I of Session Laws 2021-71] are intended to be clarifying of the General Assembly's intent under previous amendments to this statute."

Effect of Amendments. - Session Laws 2004-143, s. 5, effective August 1, 2004, in subsection (d), substituted "for water or sewer services" for "additional rent for water and sewer services".

Session Laws 2009-279, s. 4, effective October 1, 2009, and applicable to leases entered into on or after that date, in the section catchline, substituted "Authorized" for "Late"; deleted subdivision (a)(3), concerning rent subsized by the United States Department of Housing and Urban Development; in subsection (b), inserted "subsection (a) of"; deleted subsection (c) making rental agreements that are contrary to this section void as against public policy; in subsection (d), inserted "pursuant to subsection (a) of this section"; and added subsections (e) through (h).

Session Laws 2016-98, s. 1.7, substituted "late fees and eviction fees" for "fees" in the section heading; in subsection (f), deleted "and neither party appealed the judgment of the magistrate" at the end of the first sentence, added the second sentence and made a minor stylistic change. See editor's note for effective date and applicability.

Session Laws 2018-50, s. 1.1(a), (b), effective June 25, 2018, added "and (i)" following "(e) through (g)" in subdivision (h)(3); and added subsections (i) and (j).

Session Laws 2021-71, s. 1.1, substituted "fees, costs, and expenses" for "late fees and eviction fees" in the section heading; inserted "Late Fee." in subsection (a); substituted "charge an administrative" for "charge a" in subsections (e), and (f); inserted "administrative" preceding "trial fee" in subsection (g); substituted "Administrative Fees and Out of Pocket Expenses and Litigation Costs" for "Fees" in subsection (h); inserted "administrative" preceding "fees" in subdivision (h)(1); substituted "an administrative fee" for "a fee" in subdivision (h)(2); rewrote subdivision (h)(3); added subdivision (h)(3a); in subsection (i), inserted "and Litigation Costs” and substituted "also is” for "is also”; substituted "paid or owed" for "incurred" in subdivision (i)(3); inserted "and litigation costs” in subsection (j); and added subsection (k). For effective date and applicability, see editor's note.

CASE NOTES

Administration Fees. - When a residential lease provided for an administrative fee to be charged to a tenant if legal papers were filed against the tenant, this was not a late fee governed by G.S. 42-46(a), as it was reasonably related to the additional expense incurred by the landlord and did not relate solely to the rent being late. Friday v. United Dominion Realty Trust, Inc., 155 N.C. App. 671, 575 S.E.2d 532 (2003).

Excessive Late Fees. - Residential lease providing for a late fee greater than five percent of the rental obligation violated G.S. 42-46(a), even though the late fees that the tenant was actually charged did not violate the statute; the late fee provision was void and unenforceable as against public policy. Friday v. United Dominion Realty Trust, Inc., 155 N.C. App. 671, 575 S.E.2d 532 (2003).

Residential lease provision stating a late fee exceeding five percent of the rent payment, which, therefor, violated the statutory limitation on late fees in G.S. 42-46(a), could support a finding that the landlord violated G.S. 75-54(4) by falsely representing the amount of a debt against the tenant when the landlord requested that late fee in three summary ejectment complaints, or "legal proceedings," against the tenant. Friday v. United Dominion Realty Trust, Inc., 155 N.C. App. 671, 575 S.E.2d 532 (2003).

Residential lease provision stating a late fee exceeding five percent of the rent payment, which, therefore, violated the statutory limitation on late fees in G.S. 42-46(a), could support a finding that the landlord violated G.S. 75-55(2) by collecting or attempting to collect a charge incidental to the principal debt to which the landlord was not legally entitled. Friday v. United Dominion Realty Trust, Inc., 155 N.C. App. 671, 575 S.E.2d 532 (2003).

Cited in Neil v. Kuester Real Estate Servs., 237 N.C. App. 132, 764 S.E.2d 498 (2014); Town of Beech Mt. v. Genesis Wildlife Sanctuary, Inc., 247 N.C. App. 444, 786 S.E.2d 335 (2016).

§§ 42-47 through 42-49: Reserved for future codification purposes.

ARTICLE 6. Tenant Security Deposit Act.

Sec.

§ 42-50. Deposits from the tenant.

Security deposits from the tenant in residential dwelling units shall be deposited in a trust account with a licensed and federally insured depository institution or a trust institution authorized to do business in this State, or the landlord may, at the landlord's option, furnish a bond from an insurance company licensed to do business in North Carolina. The security deposits from the tenant may be held in a trust account outside of the State of North Carolina only if the landlord provides the tenant with an adequate bond in the amount of the deposits. The landlord or the landlord's agent shall notify the tenant within 30 days after the beginning of the lease term of the name and address of the bank or institution where the tenant's deposit is currently located or the name of the insurance company providing the bond.

History

(1977, c. 914, s. 1; 2015-93, s. 2; 2017-25, s. 2(a).)

Effect of Amendments. - Session Laws 2015-93, s. 2, effective June 19, 2015, substituted "federally insured depository institution lawfully doing business in this State" for "insured bank or savings institution located in the State of North Carolina " in the first sentence of the section.

Session Laws 2017-25, s. 2(a), effective June 2, 2017, substituted "or a trust institution authorized to do business in this State" for "lawfully doing business in this State" in the first sentence; substituted "the landlord's option" for "his option" twice; substituted "the tenant's deposit" for "his deposit"; and made a related change.

Legal Periodicals. - For a survey of 1977 law on property, see 56 N.C.L. Rev. 1111 (1978).

For article, "Who Is a Tenant? The Correct Definition of the Status in North Carolina," see 21 N.C. Cent. L.J. 79 (1995).

CASE NOTES

Class Certification. - When tenants said landlords violated G.S. 42-50 et seq. by deducting an administrative fee from security deposits, overcharging for damages, and charging for normal wear and tear, contrary to G.S. 42-51 and G.S. 42-52, class certification was properly denied because the tenants were not entitled to automatic full refunds of security deposits but only a refund of any sums withheld for a use not statutorily permitted, requiring individual trials and making a class action an inferior method to adjudicate the claims. Neil v. Kuester Real Estate Servs., 237 N.C. App. 132, 764 S.E.2d 498 (2014).

Available Remedies. - Under the North Carolina Tenant Security Deposit Act (Act), G.S. 42-50 et seq., the remedy of an appropriate refund, to wit, a proper accounting and refund of any remaining portion of a security deposit to which a tenant is entitled, applies to violations of G.S. 42-52, such as overcharging for damages and charging for normal wear and tear, and when a landlord fails to account for and refund the balance of the tenant's security deposit as required, G.S. 42-50. Neil v. Kuester Real Estate Servs., 237 N.C. App. 132, 764 S.E.2d 498 (2014).

Defendants' unequivocal admission in their answer that they did "accept a security deposit" constituted a judicial admission conclusively establishing the fact, despite defendants' contention that the deposit was not a security deposit, but was simply to "hold the house." Dobbins v. Paul, 71 N.C. App. 113, 321 S.E.2d 537 (1984), overruled on other grounds, Stanley v. Moore, 339 N.C. 717, 454 S.E.2d 225 (1995).

Cited in Borders v. Newton, 68 N.C. App. 768, 315 S.E.2d 731 (1984).

§ 42-51. Permitted uses of the deposit.

Security deposits for residential dwelling units shall be permitted only for the following:
1. The tenant's possible nonpayment of rent and costs for water or sewer services provided pursuant to G.S. 62-110(g) and electric service pursuant to G.S. 62-110(h).
2. Damage to the premises, including damage to or destruction of smoke alarms or carbon monoxide alarms.
3. Damages as the result of the nonfulfillment of the rental period, except where the tenant terminated the rental agreement under G.S. 42-45, G.S. 42-45.1, or because the tenant was forced to leave the property because of the landlord's violation of Article 2A of Chapter 42 of the General Statutes or was constructively evicted by the landlord's violation of G.S. 42-42(a).
4. Any unpaid bills that become a lien against the demised property due to the tenant's occupancy.
5. The costs of re-renting the premises after breach by the tenant, including any reasonable fees or commissions paid by the landlord to a licensed real estate broker to re-rent the premises.
6. The costs of removal and storage of the tenant's property after a summary ejectment proceeding.
7. Court costs.
8. Any fee permitted by G.S. 42-46.
The security deposit shall not exceed an amount equal to two weeks' rent if a tenancy is week to week, one and one-half months' rent if a tenancy is month to month, and two months' rent for terms greater than month to month. These deposits must be fully accounted for by the landlord as set forth in G.S. 42-52.

History

(1977, c. 914, s. 1; 1983, c. 672, s. 3; 2001-502, s. 5; 2004-143, s. 6; 2011-252, s. 3; 2012-17, s. 4; 2012-194, s. 59(a), (b).)

Effect of Amendments. - Session Laws 2004-143, s. 6, effective August 1, 2004, in the first sentence, substituted "rent and costs for water or" for "base rent and additional rent for water and" preceding "sewer services," and substituted "that" for "which" preceding "become a lien."

Session Laws 2011-252, s. 3, effective October 1, 2011, and applicable to leases entered into on or after that date, inserted "and electric service pursuant to G.S. 62-110(h)" in the first sentence.

Session Laws 2012-17, s. 4, effective October 1, 2012, rewrote the section. For applicability, see editor's note.

Session Laws 2012-194, s. 59(a), effective October 1, 2012, added "Chapter 42 of" in subdivision (a)(3).

Session Laws 2012-194, s. 59(b), effective December 1, 2012, substituted "alarms" for "detectors" twice in subdivision (a)(2).

CASE NOTES

Available Remedies. - When it is alleged that a landlord violated G.S. 42-51 by deducting an administrative fee from a security deposit, any such violations entitle tenants only to the appropriate refund remedy, damages remedy, and/or attorney's fees remedy in G.S. 42-55, as withholding money for an issue not on the list of permitted uses for security deposits directly implicates the proper amount of a tenant's security deposit refund, thereby triggering the appropriate refund remedy. Neil v. Kuester Real Estate Servs., 237 N.C. App. 132, 764 S.E.2d 498 (2014).

Applied in Dobbins v. Paul, 71 N.C. App. 113, 321 S.E.2d 537 (1984); Cla-Mar Mgt. v. Harris, 76 N.C. App. 300, 332 S.E.2d 495 (1985).

§ 42-52. Landlord's obligations.

Upon termination of the tenancy, money held by the landlord as security may be applied as permitted in G.S. 42-51 or, if not so applied, shall be refunded to the tenant. In either case the landlord in writing shall itemize any damage and mail or deliver same to the tenant, together with the balance of the security deposit, no later than 30 days after termination of the tenancy and delivery of possession of the premises to the landlord. If the extent of the landlord's claim against the security deposit cannot be determined within 30 days, the landlord shall provide the tenant with an interim accounting no later than 30 days after termination of the tenancy and delivery of possession of the premises to the landlord and shall provide a final accounting within 60 days after termination of the tenancy and delivery of possession of the premises to the landlord. If the tenant's address is unknown the landlord shall apply the deposit as permitted in G.S. 42-51 after a period of 30 days and the landlord shall hold the balance of the deposit for collection by the tenant for at least six months. The landlord may not withhold as damages part of the security deposit for conditions that are due to normal wear and tear nor may the landlord retain an amount from the security deposit which exceeds his actual damages.

History

(1977, c. 914, s. 1; 2009-279, s. 5.)

Effect of Amendments. - Session Laws 2009-279, s. 5, effective October 1, 2009, in the second sentence, substituted "of the premises to the landlord" for "by the tenant" at the end, and added the third sentence.

CASE NOTES

§ 42-53. Pet deposits.

Notwithstanding the provisions of this section, the landlord may charge a reasonable, nonrefundable fee for pets kept by the tenant on the premises.

History

(1977, c. 914, s. 1.)

§ 42-54. Transfer of dwelling units.

Upon termination of the landlord's interest in the dwelling unit in question, whether by sale, assignment, death, appointment of receiver or otherwise, the landlord or his agent shall, within 30 days, do one of the following acts, either of which shall relieve him of further liability with respect to such payment or deposit:

Transfer the portion of such payment or deposit remaining after any lawful deductions made under this section to the landlord's successor in interest and thereafter notify the tenant by mail of such transfer and of the transferee's name and address; or
Return the portion of such payment or deposit remaining after any lawful deductions made under this section to the tenant.

History

(1977, c. 914, s. 1.)

§ 42-55. Remedies.

If the landlord or the landlord's successor in interest fails to account for and refund the balance of the tenant's security deposit as required by this Article, the tenant may institute a civil action to require the accounting of and the recovery of the balance of the deposit. The willful failure of a landlord to comply with the deposit, bond, or notice requirements of this Article shall void the landlord's right to retain any portion of the tenant's security deposit as otherwise permitted under G.S. 42-51. In addition to other remedies at law and equity, the tenant may recover damages resulting from noncompliance by the landlord; and upon a finding by the court that the party against whom judgment is rendered was in willful noncompliance with this Article, such willful noncompliance is against the public policy of this State and the court may award attorney's fees to be taxed as part of the costs of court.

History

(1977, c. 914, s. 1; 2009-279, s. 6.)

Effect of Amendments. - Session Laws 2009-279, s. 6, added the second sentence, and substituted "such willful noncompliance is against the public policy of this State and the court may award attorney's fees to be taxed as part of the costs of court" for "the court may, in its discretion, allow a reasonable attorney's fee to the duly licensed attorney representing the prevailing party, such attorney's fee to be taxed as part of the cost of court" at the end of the last sentence.

CASE NOTES

Available Remedies. - Under the North Carolina Tenant Security Deposit Act (Act), G.S. 42-50 et seq., the full refund remedy in G.S. 42-55 is available only for willful violations of G.S. 42-50, the only section of the Act containing provisions regarding deposit, bond, and notice vis a vis security deposits. Neil v. Kuester Real Estate Servs., 237 N.C. App. 132, 764 S.E.2d 498 (2014).

Under the North Carolina Tenant Security Deposit Act (Act), G.S. 42-50 et seq., the remedy of an appropriate refund, to wit, a proper accounting and refund of any remaining portion of a security deposit to which a tenant is entitled, applies to violations of G.S. 42-52, such as overcharging for damages and charging for normal wear and tear, and when a landlord fails to account for and refund the balance of the tenant's security deposit as required, G.S. 42-50. Neil v. Kuester Real Estate Servs., 237 N.C. App. 132, 764 S.E.2d 498 (2014).

When it is alleged that a landlord violated G.S. 42-51 by deducting an administrative fee from a security deposit, any such violations entitle tenants only to the appropriate refund remedy, damages remedy, and/or attorney's fees remedy in G.S. 42-55, as withholding money for an issue not on the list of permitted uses for security deposits directly implicates the proper amount of a tenant's security deposit refund, thereby triggering the appropriate refund remedy. Neil v. Kuester Real Estate Servs., 237 N.C. App. 132, 764 S.E.2d 498 (2014).

§ 42-56. Application of Article.

The provisions of this Article shall apply to all persons, firms, or corporations engaged in the business of renting or managing residential dwelling units, excluding single rooms, on a weekly, monthly or annual basis.

History

(1977, c. 914, s. 2.)

Legal Periodicals. - For article, "Who Is a Tenant? The Correct Definition of the Status in North Carolina," see 21 N.C. Cent. L.J. 79 (1995).

§§ 42-57, 42-58: Reserved for future codification purposes.

ARTICLE 7. Expedited Eviction of Drug Traffickers and Other Criminals.

Sec.

§ 42-59. Definitions.

As used in this Article:

"Complete eviction" means the eviction and removal of a tenant and all members of the tenant's household.
"Criminal activity" means (i) activity that would constitute a violation of G.S. 90-95 other than a violation of G.S. 90-95(a)(3), or a conspiracy to violate any provision of G.S. 90-95 other than G.S. 90-95(a)(3); or (ii) other criminal activity that threatens the health, safety, or right of peaceful enjoyment of the entire premises by other residents or employees of the landlord.
"Entire premises" or "leased residential premises" means a house, building, mobile home, or apartment, whether publicly or privately owned, which is leased for residential purposes. These terms include the entire building or complex of buildings or mobile home park and all real property of any nature appurtenant thereto and used in connection therewith, including all individual rental units, streets, sidewalks, and common areas. These terms do not include a hotel, motel, or other guest house or part thereof rented to a transient guest.
"Felony" means a criminal offense that constitutes a felony under North Carolina law.
"Guest" means any natural person who has been given express or implied permission by a tenant, a member of the tenant's household, or another guest of the tenant to enter an individual rental unit or any portion of the entire premises.
"Individual rental unit" means an apartment or individual dwelling or accommodation which is leased to a particular tenant, whether or not it is used or occupied or intended to be used or occupied by a single family or household.
"Landlord" means a person, entity, corporation, or governmental authority or agency who or which owns, operates, or manages any leased residential premises.
"Partial eviction" means the eviction and removal of specified persons from a leased residential premises.
"Resident" means any natural person who lawfully resides in a leased residential premises who is not a signatory to a lease or otherwise has no contractual relationship to a landlord. The term includes members of the household of a tenant.
"Tenant" means any natural person or entity who is a named party or signatory to a lease or rental agreement, and who occupies, resides in, or has a legal right to possess and use an individual rental unit.

History

(1995, c. 419, s. 1.)

§ 42-59.1. Statement of Public Policy.

The General Assembly recognizes that the residents of this State have the right to the peaceful, safe, and quiet enjoyment of their homes. The General Assembly further recognizes that these rights, as well as the health, safety, and welfare of residents, are often jeopardized by the criminal activity of other residents of rented residential property, but that landlords are often unable to remove those residents engaged in criminal activity. In order to ensure that residents of this State can have the peaceful, safe, and quiet enjoyment of their homes, the provisions of this Article are deemed to apply to all residential rental agreements in this State.

History

(1995, c. 419, s. 1.)

CASE NOTES

Section Does Not Mandate Eviction or Impose Liability for Failing to Evict. - Trial court did not err in granting summary judgment for landlords in a tenant's action to recover damages for personal injuries he sustained when another tenant assaulted him because the landlords could not be held liable for their allegedly negligent leasing of property to the other tenant; G.S. 42-59.1, and the article in which it is contained, provides landlords with the power to evict tenants engaged in certain criminal activity, but neither mandates eviction nor imposes liability on a landlord for failing to evict. Davenport v. D.M. Rental Props., 217 N.C. App. 133, 718 S.E.2d 188 (2011).

§ 42-60. Nature of actions and jurisdiction.

The causes of action established in this Article are civil actions to remove tenants or other persons from leased residential premises. These actions shall be brought in the district court of the county where the individual rental unit is located. If the plaintiff files the complaint as a small claim, the parties shall not be entitled to discovery from the magistrate. However, if such a case is filed originally in the district court or is appealed from the judgment of a magistrate for a new trial in the district court, all of the procedures and remedies in this Article shall be applicable.

History

(1995, c. 419, s. 1.)

§ 42-61. Standard of proof.

The civil causes of action established in this Article shall be proved by a preponderance of the evidence, except as otherwise expressly provided in G.S. 42-64.

History

(1995, c. 419, s. 1.)

§ 42-62. Parties.

Who May Bring Action. - A civil action pursuant to this Article may be brought by the landlord of a leased residential premises, or the landlord's agent, as provided for in G.S. 1-57 of the General Statutes and in Article 3 of this Chapter.
Defendants to the Action. - A civil action pursuant to this Article may be brought against any person within the jurisdiction of the court, including a tenant, adult or minor member of the tenant's household, guest, or resident of the leased residential premises. If any defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient to identify him or her.
Notice to Defendants. - A complaint initiating an action pursuant to this Article shall be served in the same manner as serving complaints in civil actions pursuant to G.S. 1A-1, Rule 4 and G.S. 42-29.

History

(1995, c. 419, s. 1.)

§ 42-63. Remedies and judicial orders.

Grounds for Complete Eviction. - Subject to the provisions of G.S. 42-64 and pursuant to G.S 42-68, the court shall order the immediate eviction of a tenant and all other residents of the tenant's individual unit where it finds that:
1. Criminal activity has occurred on or within the individual rental unit leased to the tenant; or
2. The individual rental unit leased to the tenant was used in any way in furtherance of or to promote criminal activity; or
3. The tenant, any member of the tenant's household, or any guest has engaged in criminal activity on or in the immediate vicinity of any portion of the entire premises; or
4. The tenant has given permission to or invited a person to return or reenter any portion of the entire premises, knowing that the person has been removed and barred from the entire premises pursuant to this Article or the reasonable rules and regulations of a publicly assisted landlord; or
5. The tenant has failed to notify law enforcement or the landlord immediately upon learning that a person who has been removed and barred from the tenant's individual rental unit pursuant to this Article has returned to or reentered the tenant's individual rental unit.
Grounds for Partial Eviction and Issuance of Removal Orders. - The court shall, subject to the provisions of G.S. 42-64, order the immediate removal from the entire premises of any person other than the tenant, including an adult or minor member of the tenant's household, where the court finds that such person has engaged in criminal activity on or in the immediate vicinity of any portion of the leased residential premises. Persons removed pursuant to this section shall be barred from returning to or reentering any portion of the entire premises.
Conditional Eviction Orders Directed Against the Tenant. - Where the court finds that a member of the tenant's household or a guest of the tenant has engaged in criminal activity on or in the immediate vicinity of any portion of the leased residential premises, but such person has not been named as a party defendant, has not appeared in the action or otherwise has not been subjected to the jurisdiction of the court, a conditional eviction order issued pursuant to subsection (b) of this section shall be directed against the tenant, and shall provide that as an express condition of the tenancy, the tenant shall not give permission to or invite the barred person or persons to return to or reenter any portion of the entire premises. The tenant shall acknowledge in writing that the tenant understands the terms of the court's order, and that the tenant further understands that the failure to comply with the court's order will result in the mandatory termination of the tenancy pursuant to G.S. 42-68.

History

(1995, c. 419, s. 1.)

CASE NOTES

Summary Eviction. - G.S. 42-63(a) does not mandate the summary eviction of a public housing tenant for illegal activity because G.S. 42-64(a)(1) provides that a court shall refrain from ordering a tenant's complete eviction where the tenant did not know or have reason to know that criminal activity was occurring or would likely occur, that the rental unit was used to promote such activity, or that any member of the tenant's household or any guest engaged in criminal activity on or in the immediate vicinity of any portion of the premises. E. Carolina Reg'l Hous. Auth. v. Lofton, 238 N.C. App. 42, 767 S.E.2d 63 (2014).

Cited in E. Carolina Reg'l Hous. Auth. v. Lofton, 369 N.C. 8, 789 S.E.2d 449 (2016).

§ 42-64. Affirmative defense or exemption to a complete eviction.

Affirmative Defense. - The court shall refrain from ordering the complete eviction of a tenant pursuant to G.S. 42-63(a) where the tenant has established that the tenant was not involved in the criminal activity and that:
1. The tenant did not know or have reason to know that criminal activity was occurring or would likely occur on or within the individual rental unit, that the individual rental unit was used in any way in furtherance of or to promote criminal activity, or that any member of the tenant's household or any guest has engaged in criminal activity on or in the immediate vicinity of any portion of the entire premises; or
2. The tenant had done everything that could reasonably be expected under the circumstances to prevent the commission of the criminal activity, such as requesting the landlord to remove the offending household member's name from the lease, reporting prior criminal activity to appropriate law enforcement authorities, seeking assistance from social service or counseling agencies, denying permission, if feasible, for the offending household member to reside in the unit, or seeking assistance from church or religious organizations.
Subsequent Affirmative Defense to a Complete Eviction. - The affirmative defense set forth in subsection (a) of this section shall not be available to a tenant in a subsequent action brought pursuant to this Article unless the tenant can establish by clear and convincing evidence that no reasonable person could have foreseen the occurrence of the subsequent criminal activity or that the tenant had done everything reasonably expected under the circumstances to prevent the commission of the second criminal activity.
Exemption. - Where the grounds for a complete eviction have been established, the court shall order the eviction of the tenant unless, taking into account the circumstances of the criminal activity and the condition of the tenant, the court is clearly convinced that immediate eviction or removal would be a serious injustice, the prevention of which overrides the need to protect the rights, safety, and health of the other tenants and residents of the leased residential premises. The burden of proof for the exemption set forth shall be by clear and convincing evidence.

Notwithstanding the court's denial of eviction of the tenant, if the plaintiff has proven that an evictable offense under G.S. 42-63 was committed by someone other than the tenant, the court shall order such other relief as the court deems appropriate to protect the interests of the landlord and neighbors of the tenant, including the partial eviction of the culpable household members pursuant to G.S. 42-63(b) and conditional eviction orders under G.S. 42-63(c).

History

(1995, c. 419, s. 1.)

CASE NOTES

§ 42-65. Obstructing the execution or enforcement of a removal or eviction order.

Any person who knowingly violates any order issued pursuant to this Article or who knowingly interferes with, obstructs, impairs, or prevents any law enforcement officer from enforcing or executing any order issued pursuant to this Article, shall be subject to criminal contempt under Article 1 of Chapter 5A of the General Statutes. Nothing in this section shall be construed in any way to preclude or preempt prosecution for any other criminal offense.

History

(1995, c. 419, s. 1.)

§ 42-66. Motion to enforce eviction and removal orders.

A motion to enforce an eviction or removal order issued pursuant to G.S. 42-63(b) or (c) shall be heard on an expedited basis and within 15 days of the service of the motion.
Mandatory Eviction. - The court shall order the immediate eviction of the tenant where it finds that:
1. The tenant has given permission to or invited any person removed or barred from the leased residential premises pursuant to this Article to return to or reenter any portion of the premises; or
2. The tenant has failed to notify appropriate law enforcement authorities or the landlord immediately upon learning that any person who had been removed and barred pursuant to this Article has returned to or reentered the tenant's individual rental unit; or
3. The tenant has otherwise knowingly violated an express term or condition of any order issued by court pursuant to this Article.

History

(1995, c. 419, s. 1.)

§ 42-67. Impermissible defense.

It shall not be a defense to an action brought pursuant to this Article that the criminal activity was an isolated incident or otherwise has not recurred. Nor is it a defense that the person who actually engaged in the criminal activity no longer resides in the tenant's individual rental unit. However, evidence of such facts may be admissible if offered to support affirmative defenses or grounds for an exemption pursuant to G.S. 42-64.

History

(1995, c. 419, s. 1.)

§ 42-68. Expedited proceedings.

Where the complaint is filed as a small claim, the expedited process for summary ejectment, as provided in Article 3 of this Chapter and Chapter 7A of the General Statutes, applies. Where the complaint is filed initially in the district court or a judgment by the magistrate is appealed to the district court, the procedure in G.S. 42-34(b) through (g), if applicable, and the following procedures apply:

Expedited Hearing. - When a complaint is filed initiating an action pursuant to this Article, the court shall set the matter for a hearing which shall be held on an expedited basis and within the first term of court falling after 30 days from the service of the complaint on all defendants or from service of notice of appeal from a magistrate's judgment, unless either party obtains a continuance. However, where a defendant files a counterclaim, the court shall reset the trial for the first term of court falling after 30 days from the defendant's service of the counterclaim.
Standards for Continuances. - The court shall not grant a continuance, nor shall it stay the civil proceedings pending the disposition of any related criminal proceedings, except as required to complete permitted discovery, to have the plaintiff reply to a counterclaim, or for compelling and extraordinary reasons or on application of the district attorney for good cause shown.
When Presented. - The defendant in an action brought in district court pursuant to this Article shall serve an answer within 20 days after service of the summons and complaint, or within 20 days after service of the appeal to district court when the action was initially brought in small claims court. The plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the answer.
Extensions of Time for Filing. - The parties to an action brought pursuant to this Article shall not be entitled to an extension of time for completing an act required by subdivision (3) of this section, except for compelling and extraordinary reasons.
Default. - A party to an action brought pursuant to this Article who fails to plead in accordance with the time periods in subdivision (3) of this section shall be subject to the provisions of G.S. 1A-1, Rule 55.
Rules of Civil Procedure. - Unless otherwise provided for in this Article, G.S. 1A-1, the Rules of Civil Procedure, shall apply in the district court to all actions brought pursuant to this Article.

History

(1995, c. 419, s. 1.)

§ 42-69. Relation to criminal proceedings.

Criminal Proceedings, Conviction, or Adjudication Not Required. - The fact that a criminal prosecution involving the criminal activity is not commenced or, if commenced, has not yet been concluded or has terminated without a conviction or adjudication of delinquency shall not preclude a civil action or the issuance of any order pursuant to this Article.
Effect of Conviction or Adjudication. - Where a criminal prosecution involving the criminal activity results in a final criminal conviction or adjudication of delinquency, such adjudication or conviction shall be considered in the civil action as conclusive proof that the criminal activity occurred.
Admissibility of Criminal Trial Recordings or Transcripts. - Any evidence or testimony admitted in the criminal proceeding, including recordings or transcripts of the adult or juvenile criminal proceedings, whether or not they have been transcribed, may be admitted in the civil action initiated pursuant to this Article.
Use of Sealed Criminal Proceeding Records. - In the event that the evidence or records of a criminal proceeding which did not result in a conviction or adjudication of delinquency have been sealed by court order, the court in a civil action brought pursuant to this Article may order such evidence or records, whether or not they have been transcribed, to be unsealed if the court finds that such evidence or records would be relevant to the fair disposition of the civil action.

History

(1995, c. 419, s. 1.)

§ 42-70. Discovery.

The parties to an action brought pursuant to this Article shall be entitled to conduct discovery, if the action is filed originally in or appealed to the district court, only in accordance with this section.
Any defendant must initiate all discovery within the time allowed by this Article for the filing of an answer or counterclaim.
The plaintiff must initiate all discovery within 20 days of service of an answer or counterclaim by a defendant.
All parties served with interrogatories, requests for production of documents, and requests for admissions under G.S. 1A-1, Rules 33, 34, and 36 shall serve their responses within 20 days.
Upon application by the plaintiff, or agreement of the parties, the court shall issue a preliminary injunction against all alleged illegal activity by the defendant or other identified parties who are residents of the individual rental unit or guests of defendants, pending the completion of discovery and any other wait before the trial has occurred.

History

(1995, c. 419, s. 1.)

§ 42-71. Protection of threatened witnesses or affiants.

If proof necessary to establish the grounds for eviction depends, in whole or in part, upon the affidavits or testimony of witnesses who are not peace officers, the court may, upon a showing of prior threats of violence or acts of violence by any defendant or any other person, issue orders to protect those witnesses, including the nondisclosure of the name, address, or any other information which may identify those witnesses.

History

(1995, c. 419, s. 1.)

§ 42-72. Availability of law enforcement resources to plaintiffs or potential plaintiffs.

A law enforcement agency may make available to any person or entity authorized to bring an action pursuant to this Article any police report or edited portion thereof, or forensic laboratory report or edited portion thereof, concerning criminal activity committed on or in the immediate vicinity of the leased residential premises. A law enforcement agency may also make any officer or officers available to testify as a fact witness or expert witness in a civil action brought pursuant to this Article. The agency shall not disclose such information where, in the agency's opinion, such disclosure would jeopardize an investigation, prosecution, or other proceeding, or where such disclosure would violate any federal or State statute.

History

(1995, c. 419, s. 1.)

§ 42-73. Collection of rent.

A landlord shall be entitled to collect rent due and owing with knowledge of any illegal acts that violate the provisions of this act without such collection constituting a waiver of the alleged defaults.

History

(1995, c. 419, s. 1.)

§ 42-74. Preliminary or emergency relief.

The district court shall have the authority at any time to issue a temporary restraining order, grant a preliminary injunction, or take such other actions as the court deems necessary to enjoin or prevent the commission of criminal activity on or in the immediate vicinity of leased residential premises, or otherwise to protect the rights and interests of all tenants and residents. A violation of any such duly issued order or preliminary relief shall subject the violator to civil or criminal contempt.

History

(1995, c. 419, s. 1.)

§ 42-75. Cumulative remedies.

The causes of action and remedies authorized by this Article shall be cumulative with each other and shall be in addition to, not in lieu of, any other causes of action or remedies which may be available at law or equity, including causes of action and remedies based on express provisions of the lease not contrary to this Article.

History

(1995, c. 419, s. 1.)

§ 42-76. Civil immunity.

Any person or organization who, in good faith, institutes, participates in, or encourages a person or entity to institute or participate in a civil action brought pursuant to this Article, or who in good faith provides any information relied upon by any person or entity in instituting or participating in a civil action pursuant to this Article shall have immunity from any civil liability that might otherwise be incurred or imposed. Any such person or organization shall have the same immunity from civil liability with respect to testimony given in any judicial proceeding conducted pursuant to this Article.

History

(1995, c. 419, s. 1.)