In North Carolina, can they file eviction if rent is 10 days late?
to leagally evict someone,takes months,,and alotta money.
If you don't have a lease stating otherwise then yes.
Check your lease.
Since you said 'they' I assume you are the renter (not the landlord.)
In a nutshell.. yes.
In practice, generally not before 15-30 days depending on lessor's protocol.
In actualities, most cases which are filed with court result in lengthy proceedings during which time the tenant may choose to either vacate or pay the past due balance, which immediately nullifies the eviction proceeding if said pyt is rendered prior to court final determination.
If lessor pays rent, the eviction proceeding is halted; however, according to your existing lease landlord may choose not to allow you to continue to occupy premises past the following rental period, i.e., say your lease stipulates that failure to pay in timely manner according to terms of lease constitutes a breach of the lease, then the landlord is no longer required to honor the lease and is not obligated to continue renting to you.
Likewise, if your lease is monthly, then the landlord has no obligation to continue renting to you past the disputed month's end.
I effect - can be a lose-lose proposition for both parties.
Lessor stands to loose uncollected rent plus filing costs, but if lessor goes to trouble of filing then may also seek and obtain judgement against lessee.
On other hand, you may gain an extension of time, but still end up out the door in a month or so.
Time from filing to resolution can take up to 45 days either way.
Your best solution is to sit down with your rental agent and explain your circumstances and seek an alternate pyt schedule to allow you to 'catch up' back rent. If you are on any reasonably good terms with landlord, most landlords would rather work with you than evict you.
But, if you do nothing, then the landlord is fully entitled to pursue eviction, and although you may have a month or so prior to the sheriff knocking at your door, end result will be out the door.. perhaps with a bill chaser on your heels.
Good luck. Hard times hit and s**t happens.
PS ~ wizgyp has presented the statutory matters, and what i'm offering is basically the gist of what it can come down to in terms of time and money.. typically around 45 days from landlord filing to actual eviction, or at date of next rent period
after court finding if landlord so desires.
PPS -- In NC, measures generally are stacked on the side of the landlord. Did you know that a landlord can legally require you to vacate a rental property with a ten day notice prior to nextal rental period (i.e., by the 1st of month).. and can do so for any reason such as conversion of the property such as sale (or in the case I'm now facing, the owner's decision to convert the apartments to condomiums, so that all rentals end
on given period, namely the 31st of May.. and the landlord only has to do what they did - post a notice at least ten days prior to the 1st of June.
PPS -- TOLL FREE # for Legal Aid of NC -
If your lease says so, then yes. ALWAYS go back and look into your lease.
Residential Evictions Must Be Handled Through Court
By Andrew Cogdell, Esq. and Kelley Bonfoey, Esq.
[Column #194; April 1, 2005]
North Carolina’s eviction laws require court proceedings whenever a residential tenant does not move voluntarily. Landlords may only evict or attempt to evict a tenant by taking him to court.
Enacted in 1981, these laws prohibit landlords from attempting to evict or evicting a tenant by shutting off his water, gas, or electricity, changing the locks or padlocking the premises, removing the doors and/or windows, or otherwise forcibly entering the premises and removing him and/or his belongings. These actions, sometimes referred to as “self-help measures,” are taken most often in response to a tenant’s failure to pay rent.
The primary purpose of these laws is to maintain the public peace. By requiring the use of the courts, these laws also provide tenants with an opportunity to present any available defenses. Finally, any lease or contract provision contrary to these laws is void as against public policy.
Our state’s eviction laws offer tenants other protections as well. If a landlord seeks to evict a tenant through any means other than the required judicial process, then the tenant may have a claim against him for money damages. In addition, the tenant may be entitled to continue living in, or regain possession of, the rental unit.
Also, a landlord does not have a security interest in a tenant’s personal property, and he may not seize a tenant’s belongings to satisfy any obligation. North Carolina has never recognized the common law remedy of distress and distraint; it is specifically prohibited by statute in residential tenancies. A landlord’s seizure of, or interference with, a tenant’s personal property, except as specifically permitted in certain limited circumstances, may give the tenant a claim for recovery of possession of the personal property or damages for its loss.
In 1995, the North Carolina Supreme Court held that landlords who resort to self-help measures to evict a tenant may also be liable for treble damages and attorney’s fees under our state’s unfair trade practices statute. Alternatively, based on a recent Court of Appeals case holding that landlords are debt collectors under our state’s unfair debt collection practices statute, the same wrongful conduct may subject landlords to civil penalties of up to $2,000.
If a landlord wants to evict a tenant who will not leave voluntarily, then he must file a Magistrate’s Summons and Complaint in Summary Ejectment in Small Claims (Magistrate’s) Court. The tenant must be served with the Summons and Complaint by the Sheriff’s Office, either personally or by posting. The Summons will state the date, time, and place for the court hearing. Small Claims Court hearings are informal, but both parties may have an attorney, present evidence, and subpoena witnesses.
The tenant may have defenses to the eviction action depending upon which basis for eviction the landlord sets out in the Complaint. The tenant may also file written counterclaims against the landlord. Examples of such counterclaims include: 1) a rent abatement for the landlord’s failure to make repairs for which he was responsible, after having been properly notified by the tenant; and 2) money damages if the landlord attempted to evict the tenant illegally and damaged him in some way.
Either party has ten days in which to appeal the magistrate’s decision to District Court for a new trial. During this ten-day appeal period, the landlord cannot make the tenant move. If the tenant properly appeals the judgment to District Court and pays the rent when due to the Clerk of Superior Court, then he can retain possession of the premises. The tenant may also be required to pay any undisputed past-due rent to the Clerk of Court, unless he files the appeal as an indigent.
If the eviction is based upon nonpayment of rent and the judgment is entered more than five working days before the day when the next rent payment is due under the lease, then the tenant must also pay the pro-rated rent for that time period to stay execution of the magistrate’s judgment for possession pending trial.
If the tenant does not appeal the magistrate’s judgment within ten days or loses on appeal, then the landlord may evict the tenant by obtaining a Writ of Possession of Real Property issued by the Clerk of Court. The writ directs the Sheriff to physically remove the tenant and his personal property from the premises. The Sheriff, not the landlord, is the only one who can remove the tenant and/or his personal property from the rental premises. The landlord cannot force the tenant to move at any stage of the eviction process.
Additional information on housing and evictions can be found on the Legal Aid of North Carolina website, www.legalaidnc.org.
This depends upon your actual signed contract agreement. 10days is obviously a bit extreme but if this was a high rent location and the 10day past due was a common occurance AND there is wording in the contract for number of times late then it is conceivable they could do so and would want to.
10 days late for 6 months through out a yearly lease adds up to 60 days (2months) of revenue not received as expected and 2 months worth of interest that could be accrued and/or having the money available by the land lord to pay the bills on a timely manner. Remember the landlord is paying for lots of items such as maintenance, utilities, repairs, security, etc. and all their vendors are demanding they pay on time. Therefore a 10day late by the renters has a 'trickle down' effect on the overall business.
Remember though.. if they send you a letter to evict they have to give you 30 days and you can 'appeal' and request a hearing. Generally these hearing can be set out 30 to 60 days thus giving the renter anywhere from 30 to 90 days in the residence until the matter is resolved.
Now, the landlord does have the option NOT to renew the rental agreement and send you notification of the non-renewal prior to the end of the contract. This seems like an eviction but technically it's not. With the non-renewal the landlord has a bit more leverage as either party (leasor or leasee) can decline to renew. If this is the case, I suggest you start looking for another place to move to.
Hope this helps and good luck.