CASE NOTES

The lessor and lessee are not partners. State v. Keith, 126 N.C. 1114 , 36 S.E. 169, 1900 N.C. LEXIS 371 (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 N.C. LEXIS 22 (1890). See also, Day v. Stevens, 88 N.C. 83 , 1883 N.C. LEXIS 27 (1883); Keith v. Lee, 246 N.C. 188 , 97 S.E.2d 859, 1957 N.C. LEXIS 396 (1957).

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 N.C. LEXIS 1302 (1965).

Rent Follows Reversion. —

Rent due under a lease follows reversion. Perkins v. Langdon, 231 N.C. 386 , 57 S.E.2d 407, 1950 N.C. LEXIS 467 (1950).

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 N.C. LEXIS 123 (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 N.C. LEXIS 123 (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 N.C. App. LEXIS 353 (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 N.C. App. LEXIS 353 (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 N.C. LEXIS 123 (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 N.C. App. LEXIS 613 (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 N.C. LEXIS 64 (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, 1982 N.C. App. LEXIS 2256 , aff'd, 306 N.C. 373 , 293 S.E.2d 187, 1982 N.C. LEXIS 1450 (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, 1982 N.C. App. LEXIS 2256 , aff'd, 306 N.C. 373 , 293 S.E.2d 187, 1982 N.C. LEXIS 1450 (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 N.C. LEXIS 331 (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 N.C. LEXIS 405 (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, 1982 N.C. App. LEXIS 2256 , aff'd, 306 N.C. 373 , 293 S.E.2d 187, 1982 N.C. LEXIS 1450 (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, 1982 N.C. App. LEXIS 2256 , aff'd, 306 N.C. 373 , 293 S.E.2d 187, 1982 N.C. LEXIS 1450 (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 N.C. LEXIS 16 (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 N.C. LEXIS 152 (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, 1974 N.C. App. LEXIS 1811 , cert. denied, 285 N.C. 595 , 205 S.E.2d 726, 1974 N.C. LEXIS 1054 (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, 1974 N.C. App. LEXIS 1811 , cert. denied, 285 N.C. 595 , 205 S.E.2d 726, 1974 N.C. LEXIS 1054 (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, 1974 N.C. App. LEXIS 1811 , cert. denied, 285 N.C. 595 , 205 S.E.2d 726, 1974 N.C. LEXIS 1054 (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 N.C. App. LEXIS 613 (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 N.C. App. LEXIS 824 (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 N.C. App. LEXIS 794 (2001), cert. denied, 356 N.C. 160 , 568 S.E.2d 191, 2002 N.C. LEXIS 810 (2002), cert. dismissed, 356 N.C. 160 , 568 S.E.2d 190, 2002 N.C. LEXIS 809 (2002).

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 N.C. App. LEXIS 3670 (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 N.C. App. LEXIS 3670 (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, 2005 U.S. Dist. LEXIS 11192 (M.D.N.C. June 3, 2005), dismissed, 2005 U.S. Dist. LEXIS 37920 (M.D.N.C. June 17, 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 N.C. App. LEXIS 3670 (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 N.C. LEXIS 92 (1897).

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, 1938 N.C. LEXIS 37 (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 N.C. LEXIS 945 (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 N.C. LEXIS 945 (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 N.C. LEXIS 945 (1965).

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 N.C. LEXIS 29 (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 N.C. LEXIS 29 (1884); Hayes v. Wrenn, 167 N.C. 229 , 83 S.E. 356, 1911 N.C. LEXIS 423 (1911); Collins v. Bass, 198 N.C. 99 , 150 S.E. 706, 1929 N.C. LEXIS 422 (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 N.C. LEXIS 945 (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 N.C. LEXIS 945 (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 N.C. LEXIS 945 (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 N.C. LEXIS 29 (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 N.C. LEXIS 29 (1884).

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 N.C. App. LEXIS 3607 (1984), rev'd, 313 N.C. 320 , 327 S.E.2d 878, 1985 N.C. LEXIS 1536 (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 N.C. App. LEXIS 3607 (1984), rev'd, 313 N.C. 320 , 327 S.E.2d 878, 1985 N.C. LEXIS 1536 (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 N.C. App. LEXIS 3607 (1984), rev'd, 313 N.C. 320 , 327 S.E.2d 878, 1985 N.C. LEXIS 1536 (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 N.C. LEXIS 1302 (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 N.C. LEXIS 1302 (1965).

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 N.C. App. LEXIS 953 (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 N.C. LEXIS 206 (1920).

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 Standard Oil Co., 265 N.C. 121 , 143 S.E.2d 279, 1965 N.C. LEXIS 947 (1965).

Lessee is not liable for accidental damage by fire. Dixie Fire & Cas. Co. v. Esso Standard Oil Co., 265 N.C. 121 , 143 S.E.2d 279, 1965 N.C. LEXIS 947 (1965).

Lessee is liable if buildings are damaged by negligence. Dixie Fire & Cas. Co. v. Esso Standard Oil Co., 265 N.C. 121 , 143 S.E.2d 279, 1965 N.C. LEXIS 947 (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 N.C. LEXIS 176 (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 N.C. LEXIS 13 (1917).

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 N.C. LEXIS 139 (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 N.C. LEXIS 127 (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 N.C. LEXIS 139 (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 N.C. LEXIS 127 (1885).

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 N.C. LEXIS 139 (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 N.C. LEXIS 296 (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 N.C. LEXIS 305 (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 N.C. LEXIS 296 (1897).

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 N.C. LEXIS 272 (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 N.C. LEXIS 206 (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 N.C. LEXIS 152 (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 N.C. LEXIS 411 (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 N.C. LEXIS 406 (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 N.C. LEXIS 406 (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 N.C. LEXIS 272 (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 N.C. LEXIS 272 (1920).

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 N.C. LEXIS 214 (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 N.C. LEXIS 288 (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 N.C. LEXIS 231 (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, 1986 N.C. App. LEXIS 2166 (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 N.C. LEXIS 574 (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 N.C. LEXIS 224 (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 N.C. LEXIS 21 (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 N.C. LEXIS 1051 (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 N.C. LEXIS 1314 (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 N.C. LEXIS 29 (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 N.C. LEXIS 21 (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 N.C. LEXIS 26 (1844); Scheelky v. Koch, 119 N.C. 80 , 25 S.E. 713, 1896 N.C. LEXIS 234 (1896); Harty v. Harris, 120 N.C. 408 , 27 S.E. 90, 1897 N.C. LEXIS 92 (1897); Holton v. Andrews, 151 N.C. 340 , 66 S.E. 212, 1909 N.C. LEXIS 26 8 (1909); Murrill v. Palmer, 164 N.C. 50 , 80 S.E. 55, 1913 N.C. LEXIS 8 (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 N.C. LEXIS 1051 (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 N.C. LEXIS 92 (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 N.C. LEXIS 104 (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 N.C. LEXIS 1314 (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 N.C. LEXIS 161 (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 N.C. LEXIS 21 (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 N.C. LEXIS 131 (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 N.C. App. LEXIS 1734 (2011).

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.

CASE NOTES

Analysis

• I. In General
• II. Possession and Title to Crop
• III. Advancements
• IV. Remedy of Lessor

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 N.C. LEXIS 184 (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 N.C. LEXIS 184 (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 N.C. LEXIS 276 (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 N.C. LEXIS 164 (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 N.C. LEXIS 371 (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 N.C. LEXIS 156 (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 N.C. LEXIS 184 (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 N.C. LEXIS 259 (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 N.C. LEXIS 139 (1887).

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 N.C. LEXIS 193 (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 N.C. LEXIS 156 (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 N.C. LEXIS 160 (1893).

As to jurisdiction prior to the 1971 amendment to this section, see Foster v. Penny, 76 N.C. 131 , 1877 N.C. LEXIS 184 (1877); Deloatch v. Coman, 90 N.C. 186 , 1884 N.C. LEXIS 193 (1884). See also, Montague v. Mial, 89 N.C. 137 , 1883 N.C. LEXIS 198 (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 N.C. LEXIS 259 (1904).

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 N.C. LEXIS 156 (1882).

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 N.C. LEXIS 156 (1882).

CASE NOTES

Analysis

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

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, 1986 N.C. App. LEXIS 2166 (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, 1986 N.C. App. LEXIS 2166 (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, 1986 N.C. App. LEXIS 2166 (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, 1986 N.C. App. LEXIS 2166 (1986).

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. 691 , 106 N.C. 91 , 10 S.E. 1026, 1890 N.C. LEXIS 369 (1890).

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 N.C. LEXIS 59 (1916).

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 N.C. App. LEXIS 1018 (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 N.C. App. LEXIS 924 (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 N.C. App. LEXIS 2610 (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 N.C. App. LEXIS 3800 (1984).

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 N.C. App. LEXIS 1018 (1991).

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.”

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 N.C. App. LEXIS 262 (2014).

CASE NOTES

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 N.C. App. LEXIS 3800 (1984).

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 N.C. App. LEXIS 262 (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 N.C. LEXIS 95 (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, 2016 Bankr. LEXIS 438 (Bankr. M.D.N.C. Feb. 11, 2016).

CASE NOTES

Analysis

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

Editor’s Note.

This section expired, pursuant to the terms of Session Laws 1991, c. 166, s. 3, on June 30, 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 N.C. LEXIS 401 (1936); Home Real Estate Loan & Ins. Co. v. Locker, 214 N.C. 1 , 197 S.E. 555, 1938 N.C. LEXIS 240 (1938).

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 N.C. App. LEXIS 1212 (1990).

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 N.C. App. LEXIS 1212 (1990).

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 N.C. App. LEXIS 1212 (1990).

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 N.C. App. LEXIS 1212 (1990).

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 N.C. App. LEXIS 1825 (2007).

CASE NOTES

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 N.C. App. LEXIS 2610 (2011).

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 N.C. LEXIS 225 (1877).

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 N.C. App. LEXIS 1212 (1990).

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 N.C. App. LEXIS 1212 (1990).

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 N.C. App. LEXIS 1212 (1990).

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 N.C. LEXIS 226 (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 N.C. LEXIS 227 (1877).

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 N.C. LEXIS 653 (2016).

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 (February 10, 1995).

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 N.C. LEXIS 47 (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 N.C. LEXIS 41 (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 N.C. LEXIS 34 (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 N.C. LEXIS 34 (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 N.C. LEXIS 266 (1913).

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 N.C. App. LEXIS 2610 (2011).

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 N.C. LEXIS 218 (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 N.C. LEXIS 266 (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 N.C. LEXIS 128 (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 N.C. LEXIS 202 (1903).

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 (February 10, 1995).

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, 1977 U.S. Dist. LEXIS 13470 (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 N.C. App. LEXIS 2645 (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 N.C. LEXIS 123 (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 N.C. LEXIS 165 (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 N.C. LEXIS 416 (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 N.C. LEXIS 416 (1945).

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 N.C. LEXIS 123 (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 N.C. App. LEXIS 2339 (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 N.C. App. LEXIS 3215 (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 N.C. LEXIS 419 (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 N.C. App. LEXIS 353 (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 N.C. App. LEXIS 353 (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 N.C. LEXIS 123 (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 N.C. LEXIS 123 (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 N.C. LEXIS 591 (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 N.C. LEXIS 152 (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 N.C. LEXIS 16 (1937).

A tender by the tenant of rent accrued after termination of the lease does not preclude the landlord from recovering possession. Vanderford v. Forman, 129 N.C. 217 , 39 S.E. 839, 1901 N.C. LEXIS 52 (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 N.C. LEXIS 52 (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 N.C. App. LEXIS 3215 (1980).

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 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 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, 1977 U.S. Dist. LEXIS 13470 (W.D.N.C. 1977).

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 N.C. App. LEXIS 2610 (2011).

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 N.C. App. LEXIS 244 (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 N.C. LEXIS 112 (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 N.C. LEXIS 358 (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 N.C. LEXIS 358 (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, 1970 U.S. App. LEXIS 6572 (4th Cir. 1970), cert. denied, 401 U.S. 1003, 91 S. Ct. 1228, 28 L. Ed. 2d 539, 1971 U.S. LEXIS 2638 (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 N.C. LEXIS 132 (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 N.C. App. LEXIS 1825 (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 N.C. LEXIS 180 (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 N.C. App. LEXIS 1825 (2007).

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 (February 10, 1995).

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).

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 N.C. LEXIS 95 (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 N.C. LEXIS 63 (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 N.C. LEXIS 278 (1874); Meroney v. Wright, 84 N.C. 336 , 1881 N.C. LEXIS 85 (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 N.C. LEXIS 85 (1881).

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 N.C. App. LEXIS 3138 (1979).

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 N.C. LEXIS 128 (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 N.C. LEXIS 128 (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 N.C. LEXIS 128 (1904).

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 N.C. App. LEXIS 113 (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 N.C. App. LEXIS 113 (1996).

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, 2016 Bankr. LEXIS 438 (Bankr. M.D.N.C. Feb. 11, 2016).

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.

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 N.C. App. LEXIS 2686 (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 N.C. App. LEXIS 2611 (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 N.C. App. LEXIS 1048 (1999), aff'd, 351 N.C. 470 , 527 S.E.2d 644, 2000 N.C. LEXIS 231 (2000).

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 N.C. App. LEXIS 1018 (1991).

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 N.C. App. LEXIS 839 (1990).

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 N.C. App. LEXIS 1018 (1991).

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 N.C. App. LEXIS 1018 (1991).

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 N.C. App. LEXIS 1018 (1991).

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 N.C. App. LEXIS 1018 (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 N.C. LEXIS 230 (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 N.C. App. LEXIS 1018 (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 N.C. App. LEXIS 1018 (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 N.C. App. LEXIS 544 (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 N.C. App. LEXIS 544 (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 N.C. App. LEXIS 931 (1998), rev'd, 350 N.C. 293 , 513 S.E.2d 556, 1999 N.C. LEXIS 230 (1999).

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 N.C. App. LEXIS 2611 (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 N.C. App. LEXIS 1275 (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 N.C. App. LEXIS 2611 (1987).

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 N.C. App. LEXIS 2479 (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 N.C. App. LEXIS 2686 (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 N.C. App. LEXIS 1635 (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 N.C. App. LEXIS 1389 (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 N.C. App. LEXIS 352 (1988), aff'd in part and rev'd in part, 324 N.C. 63 , 376 S.E.2d 425, 1989 N.C. LEXIS 22 (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 N.C. LEXIS 232 (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 N.C. App. LEXIS 352 (1988), aff'd in part and rev'd in part, 324 N.C. 63 , 376 S.E.2d 425, 1989 N.C. LEXIS 22 (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 N.C. App. LEXIS 352 (1988), aff'd in part and rev'd in part, 324 N.C. 63 , 376 S.E.2d 425, 1989 N.C. LEXIS 22 (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 N.C. App. LEXIS 544 (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 N.C. App. LEXIS 544 (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 N.C. App. LEXIS 264 (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 N.C. App. LEXIS 264 (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 N.C. App. LEXIS 264 (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 N.C. App. LEXIS 264 (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 N.C. App. LEXIS 264 (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 N.C. LEXIS 232 (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 N.C. App. LEXIS 2611 (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 N.C. LEXIS 232 (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 N.C. App. LEXIS 2994 (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 N.C. App. LEXIS 2993 (1981).

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 N.C. App. LEXIS 2686 (1982).

Violations of this section are evidence of negligence. Jackson v. Housing Auth., 73 N.C. App. 363, 326 S.E.2d 295, 1985 N.C. App. LEXIS 3274 (1985), aff'd, 316 N.C. 259 , 341 S.E.2d 523, 1986 N.C. LEXIS 2126 (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 N.C. App. LEXIS 631 (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 N.C. LEXIS 22 (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 N.C. App. LEXIS 631 (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 N.C. App. LEXIS 987 (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 N.C. App. LEXIS 544 (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, 1994 N.C. App. LEXIS 869 (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 N.C. App. LEXIS 1275 (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 N.C. App. LEXIS 987 (1990).

Trial court properly allowed the landlords’ motion for summary judgment on the tenants’ claim for breach of the implied warranty of habitability because there was no indication that the landlords received written notice of any needed repairs or if the conditions constituted an emergency. Johnston v. Pyka, 2022-NCCOA-289, 2022 N.C. App. LEXIS 311 (May 3, 2022).

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 N.C. App. LEXIS 977 (1999).

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 N.C. App. LEXIS 1048 (1999), aff'd, 351 N.C. 470 , 527 S.E.2d 644, 2000 N.C. LEXIS 231 (2000).

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 N.C. App. LEXIS 3607 (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 N.C. App. LEXIS 2611 (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, 1987 N.C. App. LEXIS 2739 (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, 1994 N.C. App. LEXIS 869 (1994).

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 N.C. App. LEXIS 1275 (2005).

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, 1994 N.C. App. LEXIS 869 (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, 1987 N.C. App. LEXIS 2739 (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, 1987 N.C. App. LEXIS 2739 (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, 1987 N.C. App. LEXIS 2739 (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, 1987 N.C. App. LEXIS 2739 (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, 1987 N.C. App. LEXIS 2739 (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 N.C. App. LEXIS 2611 (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 N.C. App. LEXIS 420 , sub. op., 242 N.C. App. 507, 775 S.E.2d 373, 2015 N.C. App. LEXIS 707 (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 N.C. App. LEXIS 544 (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 N.C. App. LEXIS 839 (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 N.C. App. LEXIS 544 (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 N.C. App. LEXIS 977 (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 N.C. App. LEXIS 257 (1992).

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 N.C. App. LEXIS 2611 (1987).

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 N.C. App. LEXIS 2611 (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 N.C. App. LEXIS 839 (1990).

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 N.C. App. LEXIS 839 (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 N.C. App. LEXIS 382 (2004).

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).

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.

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.

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 N.C. App. LEXIS 2993 (1981).

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 N.C. App. LEXIS 2686 (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 N.C. App. LEXIS 2686 (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 N.C. App. LEXIS 2611 (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 N.C. App. LEXIS 839 (1990).

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 N.C. App. LEXIS 2611 (1987).

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 N.C. App. LEXIS 2611 (1987).

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 N.C. App. LEXIS 839 (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 N.C. App. LEXIS 839 (1990).

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 N.C. App. LEXIS 839 (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 N.C. App. LEXIS 861 (2006).

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.

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.”

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 N.C. App. LEXIS 22 (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 N.C. App. LEXIS 22 (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 N.C. App. LEXIS 22 (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 N.C. App. LEXIS 22 (2003).

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 N.C. App. LEXIS 1130 (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 N.C. App. LEXIS 1130 (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 N.C. App. LEXIS 3800 (1984).

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 N.C. App. LEXIS 1130 (2014).

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 N.C. App. LEXIS 1130 (2014).

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 N.C. App. LEXIS 1130 (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 N.C. App. LEXIS 1130 (2014).

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 N.C. App. LEXIS 1130 (2014).

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 N.C. App. LEXIS 1130 (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 N.C. App. LEXIS 1130 (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 N.C. App. LEXIS 1130 (2014).

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 N.C. App. LEXIS 2343 (2011).

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 N.C. App. LEXIS 1272 (2014), modified, 369 N.C. 8 , 789 S.E.2d 449, 2016 N.C. LEXIS 653 (2016).

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 N.C. App. LEXIS 1272 (2014), modified, 369 N.C. 8 , 789 S.E.2d 449, 2016 N.C. LEXIS 653 (2016).