How Do I Remove My Son From My Premises?
Full Question:
Answer:
A tenant without a written lease is generally considered a month-to-month tenant-at-will. In order to terminate an at-will tenancy, written notice of lease termination (notice to quit) must be served on the tenant. A tenant may typically only be removed through the eviction process in court after written notice of the termination of the lease. Non-payment of rent or violation of a lease, is a reason to terminate a lease.
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. The tenant may have defenses to an 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, such as asking for 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 tenant cannot be evicted. 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 court may issue a Writ of Possession of Real Property. 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 during the eviction process
The following are NC statutes:
§ 42-14. Notice to quit in certain tenancies.
A tenancy from year to year may be terminated by a notice to quit given
one month or more before the end of the current year of the tenancy; a
tenancy from month to month by a like notice of seven days; a tenancy
from week to week, of two days. Provided, however, where the tenancy
involves only the rental of a space for a manufactured home as defined in
G.S. 143-143.9(6), a notice to quit must be given at least 60 days before
the end of the current rental period, regardless of the term of the
tenancy.
§ 42-25.9. Remedies.
(a) If any lessor, landlord, or agent removes or attempts to remove a
tenant from a dwelling unit in any manner contrary to this Article, the
tenant shall be entitled to recover possession or to terminate his lease
and the lessor, landlord or agent shall be liable to the tenant for
damages caused by the tenant's removal or attempted removal. Damages in
any action brought by a tenant under this Article shall be limited to
actual damages as in an action for trespass or conversion and shall not
include punitive damages, treble damages or damages for emotional
distress.
(b) If any lessor, landlord, or agent seizes possession of or
interferes with a tenant's access to a tenant's or household member's
personal property in any manner not in accordance with G.S. 44A-2(e2),
42-25.9(d), 42-25.9(g), 42-25.9(h), or G.S. 42-36.2 the tenant or
household member shall be entitled to recover possession of his personal
property or compensation for the value of the personal property, and, in
any action brought by a tenant or household member under this Article,
the landlord shall be liable to the tenant or household member for actual
damages, but not including punitive damages, treble damages or damages
for emotional distress.
(c) The remedies created by this section are supplementary to all
existing common-law and statutory rights and remedies.
(d) If any tenant abandons personal property of five hundred dollar
($500.00) value or less in the demised premises, or fails to remove such
property at the time of execution of a writ of possession in an action for
summary ejectment, the landlord may, as an alternative to the procedures
provided in G.S.42-25.9(g), 42-25.9(h), or 42-36.2, deliver the property
into the custody of a nonprofit organization regularly providing free or
at a nominal price clothing and household furnishings to people in need,
upon that organization agreeing to identify and separately store the
property for 30 days and to release the property to the tenant at no
charge within the 30-day period. A landlord electing to use this
procedure shall immediately post at the demised premises a notice
containing the name and address of the property recipient, post the same
notice for 30 days or more at the place where rent is received, and send
the same notice by first-class mail to the tenant at the tenant's last
known address. Provided, however, that the notice shall not include a
description of the property.
(e) For purposes of subsection (d), personal property shall be deemed
abandoned if the landlord finds evidence that clearly shows the premises
has been voluntarily vacated after the paid rental period has expired and
the landlord has no notice of a disability that caused the vacancy. A
presumption of abandonment shall arise 10 or more days after the landlord
has posted conspicuously a notice of suspected abandonment both inside
and outside the premises and has received no response from the tenant.
(f) Any nonprofit organization agreeing to receive personal property
under subsection (d) shall not be liable to the owner for a disposition
of such property provided that the property has been separately
identified and stored for release to the owner for a period of 30 days.
(g) Ten days after being placed in lawful possession by execution of a
writ of possession, a landlord may throw away, dispose of, or sell all
items of personal property remaining on the premises, except that in the
case of the lease of a space for a manufactured home as defined in G.S.
143-143.9(6), G.S. 44A-2(e2) shall apply to the disposition of a
manufactured home with a current value in excess of five hundred dollars
($500.00) and its contents by a landlord after being placed in lawful
possession by execution of a writ of possession. During the 10-day period
after being placed in lawful possession by execution of a writ of
possession, a landlord may move for storage purposes, but shall not throw
away, dispose of, or sell any items of personal property remaining on the
premises unless otherwise provided for in this Chapter. Upon the tenant's
request prior to the expiration of the 10-day period, the landlord shall
release possession of the property to the tenant during regular business
hours or at a time agreed upon. If the landlord elects to sell the
property at public or private sale, the landlord shall give written notice
to the tenant by first-class mail to the tenant's last known address at
least seven days prior to the day of the sale. The seven-day notice of
sale may run concurrently with the 10-day period which allows the tenant
to request possession of the property. The written notice shall state the
date, time, and place of the sale, and that any surplus of proceeds from
the sale, after payment of unpaid rents, damages, storage fees, and sale
costs, shall be disbursed to the tenant, upon request, within 10 days
after the sale, and will thereafter be delivered to the government of the
county in which the rental property is located. Upon the tenant's request
prior to the day of sale, the landlord shall release possession of the
property to the tenant during regular business hours or at a time agreed
upon. The landlord may apply the proceeds of the sale to the unpaid
rents, damages, storage fees, and sale costs. Any surplus from the sale
shall be disbursed to the tenant, upon request, within 10 days of the
sale and shall thereafter be delivered to the government of the county in
which the rental property is located.
(h) If the total value of all property remaining on the premises at the
time of execution of a writ of possession in an action for summary
ejectment is less than one hundred dollars ($100.00), then the property
shall be deemed abandoned five days after the time of execution, and the
landlord may throw away or dispose of the property. Upon the tenant's
request prior to the expiration of the five-day period, the landlord
shall release possession of the property to the tenant during regular
business hours or at a time agreed upon.
§ 95-229.1. Actions upon finding uninhabitable migrant housing.
If the Department of Labor of North Carolina determines that housing
provided to migrants under this Article is uninhabitable, but is not
reasonably expected to cause death or serious physical harm, the migrants
shall be allowed to remain in the housing for a reasonable period, not to
exceed 14 days, while the operator locates alternative housing or makes
necessary repairs to make the housing habitable. No additional civil
penalties arising from the condition of the housing shall be levied
against the operator during the 14-day period after the housing has been
determined to be uninhabitable in which the migrants are allowed to
remain in the housing. The alternative housing shall be provided at the
same rate or less than the rate paid by the migrants for the
uninhabitable housing. If the Director determines, after recommendation
by an inspector, that housing provided to migrants could reasonably be
expected to cause death or serious physical harm immediately or before
the imminence of such danger can be eliminated, the migrants shall not be
allowed to stay in the housing, and alternative housing shall be provided
by the operator at the same rate or less than the rate paid by the
migrants for the uninhabitable housing.
§ 160A-443. Ordinance authorized as to repair, closing, and demolition;
order of public officer.
**Update notice: This section has been amended by
S.L. 2009-279
Upon the adoption of an ordinance finding that dwelling conditions of
the character described in G.S. 160A-441 exist within a city, the
governing body of the city is hereby authorized to adopt and enforce
ordinances relating to dwellings within the city's territorial
jurisdiction that are unfit for human habitation. These ordinances shall
include the following provisions:
(1) That a public officer be designated or appointed to exercise the
powers prescribed by the ordinance.
(2) That whenever a petition is filed with the public officer by a
public authority or by at least five residents of the city charging that
any dwelling is unfit for human habitation or whenever it appears to the
public officer (on his own motion) that any dwelling is unfit for human
habitation, the public officer shall, if his preliminary investigation
discloses a basis for such charges, issue and cause to be served upon the
owner of and parties in interest in such dwellings a complaint stating
the charges in that respect and containing a notice that a hearing will
be held before the public officer (or his designated agent) at a place
within the county in which the property is located fixed not less than 10
days nor more than 30 days after the serving of the complaint; that the
owner and parties in interest shall be given the right to file an answer
to the complaint and to appear in person, or otherwise, and give
testimony at the place and time fixed in the complaint; and that the
rules of evidence prevailing in courts of law or equity shall not be
controlling in hearings before the public officer.
(3) That if, after notice and hearing, the public officer determines
that the dwelling under consideration is unfit for human habitation, he
shall state in writing his findings of fact in support of that
determination and shall issue and cause to be served upon the owner
thereof an order,
a. If the repair, alteration or improvement of the dwelling can be made
at a reasonable cost in relation to the value of the dwelling (the
ordinance of the city may fix a certain percentage of this value as being
reasonable), requiring the owner, within the time specified, to repair,
alter or improve the dwelling in order to render it fit for human
habitation or to vacate and close the dwelling as a human habitation; or
b. If the repair, alteration or improvement of the dwelling cannot be
made at a reasonable cost in relation to the value of the dwelling (the
ordinance of the city may fix a certain percentage of this value as being
reasonable), requiring the owner, within the time specified in the
order, to remove or demolish such dwelling. However, notwithstanding any
other provision of law, if the dwelling is located in a historic district
of the city and the Historic District Commission determines, after a
public hearing as provided by ordinance, that the dwelling is of
particular significance or value toward maintaining the character of the
district, and the dwelling has not been condemned as unsafe, the order
may require that the dwelling be vacated and closed consistent with G.S.
160A-400.14(a).
(4) That, if the owner fails to comply with an order to repair, alter
or improve or to vacate and close the dwelling, the public officer may
cause the dwelling to be repaired, altered or improved or to be vacated
and closed; that the public officer may cause to be posted on the main
entrance of any dwelling so closed, a placard with the following words:
"This building is unfit for human habitation; the use or occupation of
this building for human habitation is prohibited and unlawful."
Occupation of a building so posted shall constitute a Class 1
misdemeanor.
(5) That, if the owner fails to comply with an order to remove or
demolish the dwelling, the public officer may cause such dwelling to be
removed or demolished. The duties of the public officer set forth in
subdivisions (4) and (5) shall not be exercised until the governing body
shall have by ordinance ordered the public officer to proceed to
effectuate the purpose of this Article with respect to the particular
property or properties which the public officer shall have found to be
unfit for human habitation and which property or properties shall be
described in the ordinance. No such ordinance shall be adopted to require
demolition of a dwelling until the owner has first been given a
reasonable opportunity to bring it into conformity with the housing
code. This ordinance shall be recorded in the office of the register of
deeds in the county wherein the property or properties are located and
shall be indexed in the name of the property owner in the grantor index.
(5a) If the governing body shall have adopted an ordinance, or the
public officer shall have:
a. In a municipality located in counties which have a population in
excess of 71,000 by the last federal census (including the entirety of
any municipality located in more than one county at least one county of
which has a population in excess of 71,000), other than municipalities
with a population in excess of 190,000 by the last federal census, issued
an order, ordering a dwelling to be repaired or vacated and closed, as
provided in subdivision (3)a, and if the owner has vacated and closed such
dwelling and kept such dwelling vacated and closed for a period of one
year pursuant to the ordinance or order;
b. In a municipality with a population in excess of 190,000 by the last
federal census, commenced proceedings under the substandard housing
regulations regarding a dwelling to be repaired or vacated and closed, as
provided in subdivision (3)a., and if the owner has vacated and closed
such dwelling and kept such dwelling vacated and closed for a period of
one year pursuant to the ordinance or after such proceedings have
commenced,
then if the governing body shall find that the owner has abandoned the
intent and purpose to repair, alter or improve the dwelling in order to
render it fit for human habitation and that the continuation of the
dwelling in its vacated and closed status would be inimical to the
health, safety, morals and welfare of the municipality in that the
dwelling would continue to deteriorate, would create a fire and safety
hazard, would be a threat to children and vagrants, would attract persons
intent on criminal activities, would cause or contribute to blight and
the deterioration of property values in the area, and would render
unavailable property and a dwelling which might otherwise have been made
available to ease the persistent shortage of decent and affordable
housing in this State, then in such circumstances, the governing body
may, after the expiration of such one year period, enact an ordinance and
serve such ordinance on the owner, setting forth the following:
a. If it is determined that the repair of the dwelling to render it fit
for human habitation can be made at a cost not exceeding fifty percent
(50%) of the then current value of the dwelling, the ordinance shall
require that the owner either repair or demolish and remove the dwelling
within 90 days; or
b. If it is determined that the repair of the dwelling to render it fit
for human habitation cannot be made at a cost not exceeding fifty percent
(50%) of the then current value of the dwelling, the ordinance shall
require the owner to demolish and remove the dwelling within 90 days.
This ordinance shall be recorded in the Office of the Register of Deeds
in the county wherein the property or properties are located and shall be
indexed in the name of the property owner in the grantor index. If the
owner fails to comply with this ordinance, the public officer shall
effectuate the purpose of the ordinance.
This subdivision only applies to municipalities located in counties
which have a population in excess of 71,000 by the last federal census
(including the entirety of any municipality located in more than one
county at least one county of which has a population in excess of
71,000).
[This subdivision does not apply to the local government units listed
in subdivision (5b) of this section.]
(5b) If the governing body shall have adopted an ordinance, or the
public officer shall have:
a. In a municipality other than municipalities with a population in
excess of 190,000 by the last federal census, issued an order, ordering a
dwelling to be repaired or vacated and closed, as provided in subdivision
(3)a, and if the owner has vacated and closed such dwelling and kept such
dwelling vacated and closed for a period of one year pursuant to the
ordinance or order;
b. In a municipality with a population in excess of 190,000 by the last
federal census, commenced proceedings under the substandard housing
regulations regarding a dwelling to be repaired or vacated and closed, as
provided in subdivision (3)a., and if the owner has vacated and closed
such dwelling and kept such dwelling vacated and closed for a period of
one year pursuant to the ordinance or after such proceedings have
commenced,
then if the governing body shall find that the owner has abandoned the
intent and purpose to repair, alter or improve the dwelling in order to
render it fit for human habitation and that the continuation of the
dwelling in its vacated and closed status would be inimical to the
health, safety, morals and welfare of the municipality in that the
dwelling would continue to deteriorate, would create a fire and safety
hazard, would be a threat to children and vagrants, would attract persons
intent on criminal activities, would cause or contribute to blight and
the deterioration of property values in the area, and would render
unavailable property and a dwelling which might otherwise have been made
available to ease the persistent shortage of decent and affordable
housing in this State, then in such circumstances, the governing body
may, after the expiration of such one year period, enact an ordinance and
serve such ordinance on the owner, setting forth the following:
a. If it is determined that the repair of the dwelling to render it fit
for human habitation can be made at a cost not exceeding fifty percent
(50%) of the then current value of the dwelling, the ordinance shall
require that the owner either repair or demolish and remove the dwelling
within 90 days; or
b. If it is determined that the repair of the dwelling to render it fit
for human habitation cannot be made at a cost not exceeding fifty percent
(50%) of the then current value of the dwelling, the ordinance shall
require the owner to demolish and remove the dwelling within 90 days.
This ordinance shall be recorded in the Office of the Register of Deeds
in the county wherein the property or properties are located and shall be
indexed in the name of the property owner in the grantor index. If the
owner fails to comply with this ordinance, the public officer shall
effectuate the purpose of the ordinance.
This subdivision applies to the Cities of Eden, Lumberton, Roanoke
Rapids, and Whiteville, to the municipalities in Lee County, and the
Towns of Bethel, Farmville, Newport, and Waynesville only.
(6) Liens. —
a. That the amount of the cost of repairs, alterations or
improvements, or vacating and closing, or removal or demolition by the
public officer shall be a lien against the real property upon which the
cost was incurred, which lien shall be filed, have the same priority, and
be collected as the lien for special assessment provided in Article 10 of
this Chapter.
b. If the real property upon which the cost was incurred is located in
an incorporated city, then the amount of the cost is also a lien on any
other real property of the owner located within the city limits or within
one mile thereof except for the owner's primary residence. The additional
lien provided in this sub-subdivision is inferior to all prior liens and
shall be collected as a money judgment.
c. If the dwelling is removed or demolished by the public officer, he
shall sell the materials of the dwelling, and any personal property,
fixtures or appurtenances found in or attached to the dwelling, and shall
credit the proceeds of the sale against the cost of the removal or
demolition and any balance remaining shall be deposited in the superior
court by the public officer, shall be secured in a manner directed by the
court, and shall be disbursed by the court to the persons found to be
entitled thereto by final order or decree of the court. Nothing in this
section shall be construed to impair or limit in any way the power of the
city to define and declare nuisances and to cause their removal or
abatement by summary proceedings, or otherwise.
§ 160A-441. Exercise of police power authorized.
It is hereby found and declared that the existence and occupation of
dwellings in this State that are unfit for human habitation are inimical
to the welfare and dangerous and injurious to the health, safety and
morals of the people of this State, and that a public necessity exists
for the repair, closing or demolition of such dwellings. Whenever any
city or county of this State finds that there exists in the city or
county dwellings that are unfit for human habitation due to
dilapidation, defects increasing the hazards of fire, accidents or other
calamities, lack of ventilation, light or sanitary facilities, or due to
other conditions rendering the dwellings unsafe or unsanitary, or
dangerous or detrimental to the health, safety, morals, or otherwise
inimical to the welfare of the residents of the city or county, power is
hereby conferred upon the city or county to exercise its police powers to
repair, close or demolish the dwellings in the manner herein provided. No
ordinance enacted by the governing body of a county pursuant to this Part
shall be applicable within the corporate limits of any city unless the
city council of the city has by resolution expressly given its approval
thereto.
In addition to the exercise of police power authorized herein, any city
may by ordinance provide for the repair, closing or demolition of any
abandoned structure which the city council finds to be a health or safety
hazard as a result of the attraction of insects or rodents, conditions
creating a fire hazard, dangerous conditions constituting a threat to
children or frequent use by vagrants as living quarters in the absence of
sanitary facilities. Such ordinance, if adopted, may provide for the
repair, closing or demolition of such structure pursuant to the same
provisions and procedures as are prescribed herein for the repair, closing
or demolition of dwellings found to be unfit for human habitation.
(7) If any occupant fails to comply with an order to vacate a
dwelling, the public officer may file a civil action in the name of the
city to remove such occupant. The action to vacate the dwelling shall be
in the nature of summary ejectment and shall be commenced by filing a
complaint naming as parties-defendant any person occupying such
dwelling. The clerk of superior court shall issue a summons requiring the
defendant to appear before a magistrate at a certain time, date and place
not to exceed 10 days from the issuance of the summons to answer the
complaint. The summons and complaint shall be served as provided in G.S.
42-29. The summons shall be returned according to its tenor, and if on
its return it appears to have been duly served, and if at the hearing the
public officer produces a certified copy of an ordinance adopted by the
governing body pursuant to subdivision (5) authorizing the officer to
proceed to vacate the occupied dwelling, the magistrate shall enter
judgment ordering that the premises be vacated and that all persons be
removed. The judgment ordering that the dwelling be vacated shall be
enforced in the same manner as the judgment for summary ejectment entered
under G.S. 42-30. An appeal from any judgment entered hereunder by the
magistrate may be taken as provided in G.S. 7A-228, and the execution of
such judgment may be stayed as provided in G.S. 7A-227. An action to
remove an occupant of a dwelling who is a tenant of the owner may not be
in the nature of a summary ejectment proceeding pursuant to this
paragraph unless such occupant was served with notice at least 30 days
before the filing of the summary ejectment proceeding that the governing
body has ordered the public officer to proceed to exercise his duties
under subdivisions (4) and (5) of this section to vacate and close or
remove and demolish the dwelling.
(8) That whenever a determination is made pursuant to subdivision (3)
of this section that a dwelling must be vacated and closed, or removed or
demolished, under the provisions of this section, notice of the order
shall be given by first-class mail to any organization involved in
providing or restoring dwellings for affordable housing that has filed a
written request for such notices. A minimum period of 45 days from the
mailing of such notice shall be given before removal or demolition by
action of the public officer, to allow the opportunity for any
organization to negotiate with the owner to make repairs, lease, or
purchase the property for the purpose of providing affordable housing. The
public officer or clerk shall certify the mailing of the notices, and the
certification shall be conclusive in the absence of fraud. Only an
organization that has filed a written request for such notices may raise
the issue of failure to mail such notices, and the sole remedy shall be
an order requiring the public officer to wait 45 days before causing
removal or demolition.
