How Does a Boyfriend Evict the Mother of His Children in North Carolina?
Full Question:
Answer:
I'm assuming the mother is not on the deed and they aren't married. 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.
If the tenant refuses to leave, the landlord must visit a Small Claims Court and file a Magistrate's Summons and Complaint in Summary Ejectment. 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 out 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.