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.
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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.
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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.
