Eviction Defense Demand for rent /10 day grace period

[Bkarst]

Jurisdiction

North Carolina

I received a summary of ejectment laying on my front steps last Tuesday with a court date and time for non payment of rent. I have not received a pay or quit notice from the landlord just a phone conversation between him and my roommate. What do I need to know or do to get this case dismissed

 

[adjusterjack]

I received a summary of ejectment laying on my front steps last Tuesday with a court date and time for non payment of rent. I have not received a pay or quit notice from the landlord just a phone conversation between him and my roommate.

NC Statute 42.3 does not appear to require that the "demand" for rent be in writing.

http://www.ncleg.net/EnactedLegislation/Statutes/PDF/BySection/Chapter_42/GS_42-3.pdf

What do I need to know or do to get this case dismissed

Everything you need to know about summary ejectment starts at 42-26 at the following web page.

North Carolina General Assembly - General Statutes - Chapter 42: Landlord and Tenant.

Note 42-33 which gives you the opportunity to pay the rent and the landlord's costs, IN FULL, and the ejectment stops.

 

[Bkarst]

With all of that said and thank you for your feedback, there is a 10 day grace period from the time the land lord demands rent to the time he/she files the complaint. Now in our lease it states that on the 11th if rent is not paid the landlord may initiate eviction process. I'm curious is what is written in the lease considered the 10 day grace period or does that time commence after demand for rental payment?

NC Statute 42.3 does not appear to require that the "demand" for rent be in writing.

http://www.ncleg.net/EnactedLegislation/Statutes/PDF/BySection/Chapter_42/GS_42-3.pdf



Everything you need to know about summary ejectment starts at 42-26 at the following web page.

North Carolina General Assembly - General Statutes - Chapter 42: Landlord and Tenant.

Note 42-33 which gives you the opportunity to pay the rent and the landlord's costs, IN FULL, and the ejectment stops.

 

[adjusterjack]

Now in our lease it states that on the 11th if rent is not paid the landlord may initiate eviction process. I'm curious is what is written in the lease considered the 10 day grace period or does that time commence after demand for rental payment?

Before I answer that I have two questions for you.

1 - Please quote that provision word for word.

2 - Is there any requirement in or around that provision that requires any kind of notice before the landlord may initiate eviction? If there is, quote it word for word.

Here's why it could be important.

In Lincoln Terrace Associates v Kelly (2006) the NC Court of Appeals said:

"When termination of a lease depends upon notice, the notice must be given in strict compliance with the contract as to both time and contents."

The court went on to review the terms and conditions of the lease and ruled that notice was not properly given and ruled against the landlord.

Google Scholar

What's interesting is that the case decision makes no mention of General Statute 42-3 which tells me that perhaps the terms of the lease govern and not the statute.

The court also said:

"In order to evict a tenant in North Carolina, a landlord must prove: (1) That it distinctly reserved in the lease a right to declare a forfeiture for the alleged act or event; (2) that there is clear proof of the happening of an act or event for which the landlord reserved the right to declare a forfeiture; (3) that the landlord promptly exercised its right to declare a forfeiture, and (4) that the result of enforcing the forfeiture is not unconscionable."

Let's apply those 4 elements to your situation:

1 - The lease does entitle the LL to file for eviction on the 11th day after the rent is delinquent.

2 - There is clear proof that you didn't pay (you aren't denying that you didn't pay).

3 - He filed for eviction.

4 - Evicting for non-payment of rent is certainly not unconscionable.

There is another case decision that also emphasizes the terms and conditions of a lease (Santos v Briones 2011) and also does not mention General Statute 42-3.

Google Scholar

It seems to me, after reading both cases, that written demand and notice apply only if required by the lease.

In the absence of other notice requirements I think that a lease saying you pay on the 1st is the demand and the lease saying that the landlord is entitled to file on the 11th day after default is proper notice. That would mean that the grace period starts on the rent due date and ends on the 10th day after default and there isn't any more grace period or notice period.

Hence the question about any additional terms about notice requirements.

 

[Bkarst]

Here is a picture of what you requested.

 

[adjusterjack]

Paragraph 2 appears to confirm my analysis.

The case decisions I cited both had notice and demand provisions written into the leases.

Your lease has no such provisions and simply says exactly what will happen if rent is not paid by the 11th of the month.

The landlord is following the provision of the lease to the letter which is what the case law says he has to do.

Your signature on the lease is your agreement that the landlord is entitled to do exactly what he is doing.

Remember what I wrote earlier?

Note 42-33 which gives you the opportunity to pay the rent and the landlord's costs, IN FULL, and the ejectment stops.

Consider doing that if you don't want to be evicted. Having an eviction on your record is not a good thing.

 

[Bkarst]

This is true I had one back in 06 took forever for it to come off lol. I have been reviewing the complaint and method of delivery he used and I think I may be able to have it tossed out of court but not 100% sure. The complaint itself is filled out incorrectly so here's hoping that works. If not well my roommate will have her own battle to fight with me.

 

[adjusterjack]

I have been reviewing the complaint and method of delivery he used and I think I may be able to have it tossed out of court but not 100% sure.

You wrote that you found the complaint on your doorstep.

Read 42-29. Service of Summons, especially the last sentence which tells me that leaving it on your doorstep would be proper if all the other methods were attempted and failed.

http://www.ncleg.net/EnactedLegislation/Statutes/PDF/BySection/Chapter_42/GS_42-29.pdf

Go to the courthouse and review the case file. Look at the Affidavit of Service and see if all those other methods are listed and what happened with each one. Do that well in advance of the appearance date so you know what happened and be prepared to address it in court.

The complaint itself is filled out incorrectly

How so? Clerical errors are often ignored by the court. If that's all they were, it won't matter.

 

[Bkarst]

Actually come to find out it was laying in the flower bed. If the Sheriff had delivered the summons it would have been signed by him or a deputy neither of which is present and well we know he didn't use registered mail and we got the summons the day after it was filed. I will do as you suggested though to be completely sure.

You wrote that you found the complaint on your doorstep.

Read 42-29. Service of Summons, especially the last sentence which tells me that leaving it on your doorstep would be proper if all the other methods were attempted and failed.

http://www.ncleg.net/EnactedLegislation/Statutes/PDF/BySection/Chapter_42/GS_42-29.pdf

Go to the courthouse and review the case file. Look at the Affidavit of Service and see if all those other methods are listed and what happened with each one. Do that well in advance of the appearance date so you know what happened and be prepared to address it in court.



How so? Clerical errors are often ignored by the court. If that's all they were, it won't matter.