Chapter 18 EJECTMENT
| Jurisdiction | North Carolina |
18 EJECTMENT
A. Definition
Ejectment takes two forms in North Carolina: statutory and common law. A North Carolina statute provides that it is the public policy of the state that a "residential tenant shall be evicted, dispossessed or otherwise constructively or actually removed from his dwelling unit only in accordance with the procedure prescribed" in either of two articles of chapter 42.1 One, article 7, is titled "Expedited Eviction of Drug Traffickers and Other Criminals,"2 and the other, article 3, is titled "Summary Ejectment."
The requirements for ejectment under article 3 are set forth in N.C.G.S. § 42-26, which may be applied to either commercial3 or residential tenants, although for residential tenants it is limited by article 2A.4 The plaintiff needs to carefully consider whether summary ejectment under the statute is the action he or she wishes to pursue, as a successful summary ejectment action terminates the lease and the tenant's obligation to pay future rent.5 The magistrate's courts and the superior court division have concurrent original jurisdiction over summary ejectment actions.6
An action is for common-law ejectment when title is controverted and a plaintiff seeks to recover possession from the defendant.7 The plaintiff in a common-law ejectment action must show title8 and has the burden of proving it.9 The common-law form of ejectment is an action at law10 and is related to several other common-law actions: trespass,11 trespass to try title,12 and quiet or remove a cloud on title.13 If the plaintiff fails to meet the requirements for statutory summary ejectment, common-law ejectment may be an alternative.14
By statute, if the plaintiff proves his or her case by a preponderance of the evidence, the magistrate is to give judgment that the defendant be removed from, and the plaintiff be put in possession of, the demised premises.15 On appeal from a magistrate's summary ejectment ruling, the landlord must establish the alleged breach of the lease by the same evidentiary standard and it is error for the court to apply the clear, cogent, and convincing standard to appeal of a summary ejectment action.16
B. Elements
The elements of a statutory summary ejectment proceeding are:
(1) A relationship of landlord and tenant, and
(2) One of three statutory violations.17
Additionally, the statute requires a demand for surrender of the property.18
C. Elements Defined
1. Landlord-Tenant Relationship19
The statutory summary ejectment remedy is restricted to cases where the relation between the parties is "simply that of landlord and tenant."20 The court has jurisdiction to hear a summary ejectment proceeding even if the plaintiff doesn't allege a landlord-tenant relationship in the complaint, but the relationship has to be proven for the remedy to be granted.21
[The statute] was only intended to apply to a case in which the tenant entered into possession under some contract or lease, either actual or implied, with the supposed landlord, or with some person under whom the landlord claimed in privity, or where the tenant himself is in privity with some person who had so entered.22
A vendee,23 mortgagor24 or relative of a tenant25 is generally not a "tenant" that may be evicted by summary ejectment.
The plaintiff must present evidence showing the relationship of landlord and tenant between the parties.26 It may be sufficient that the parties view the relationship as one of landlord and tenant and act accordingly.27 If the defendant is an assignee rather than sublessor of the plaintiff, the plaintiff may be estopped from bringing a summary ejectment action.28 At one time, the existence of a landlord and tenant relationship was considered jurisdictional,29 but that is no longer the case.30
In Jones v. Swain,31 the trustee of an estate brought a summary ejectment action against the mother of the decedent's son. The mother and son were living in a house that had been owned by the decedent. It was alleged the defendant had not paid rent during the time she and her son occupied the house, nor had any been requested from her. The trustee's affidavit stated that the defendant was residing in the premises without a lease. The court said there was absolutely no evidence in the record of a landlord and tenant relationship between the parties, nor was there ever any contract or lease, actual or implied, between the parties or between the defendant and a person under whom the plaintiffs claimed in privity. The court concluded that the statute, therefore, had no application to the case.
In College Heights Credit Union v. Boyd,32 the evidence showed the plaintiff acquired a quitclaim deed to the defendants' property at a tax sale and then attempted to quiet title or establish it through a summary ejectment proceeding. The court said that was "simply the wrong action to quiet title and the wrong circumstances under which to bring an action in summary ejectment."33
2. A Statutory Violation
In addition to showing that a landlord and tenant relationship exists between the parties, the plaintiff must also show that there has been one of three statutory violations. These occur when:
(a) A tenant in possession of real estate holds over after the term has expired;34
(b) The tenant or lessee, or other person under him, has done or omitted any act by which, according to the stipulations of the lease, his or her estate has ceased; or
(c) Any tenant or lessee of lands or tenements, who is in arrears for rent or has agreed to cultivate the demised premises and to pay a part of the crop to be made on it as rent, or who has given to the lessor a lien on the crop as security for the rent, deserts the demised premises, and leaves them unoccupied and uncultivated.35
The remedy of summary ejectment is limited to these situations.36 Failure to allege one of the statutory violations will result in dismissal.37 However, a breach of the lease — the second of the three statutory violations — cannot be made the basis for summary ejectment unless the lease provides for termination on a breach or reserves the right of re-entry for breach.38 When the federal government is the landlord of federally subsidized public housing, the lease is required by statutes and regulations to incorporate certain provisions. The North Carolina Supreme Court has held that when the landlord fails to exercise its discretion as required by federal law before pursuing an eviction, summary ejectment is inappropriate.39
A common breach — and, therefore, basis for summary ejectment — is failure to pay rent.40 By statute, forfeiture is implied on failure of a tenant to pay rent within 10 days after a demand.41 The statutory forfeiture is not implied if the lease itself provides for termination on nonpayment of rent.42 Another statute provides that: "When any tenant or cropper who enters into a contract for the rental of land for the current or ensuing year willfully neglects or refuses to perform the terms of his contract without just cause, he shall forfeit his right of possession to the premises."43 The statute only applies in those counties specifically listed in it. Where a county in which the property at issue was located was added to that list, but the lease was entered prior to the effective date of the statutory amendment, the statute was inapplicable.44 An arrearage in costs owed by a tenant for water or sewer services45 or electric service46 cannot be used as a basis for termination of a lease by summary ejectment.47 There are other types of breach than failure to pay rent that will support an action for summary ejectment, and the plaintiff may succeed in the action by proving them.48
When termination of a lease depends on notice,49 the notice must be given in strict compliance with the contract requirements for time and contents.50
D. Defenses
If the summary ejectment is based on forfeiture for nonpayment of rent, there is a statutory defense when, before judgment, the tenant pays or tenders the rent due and the costs of the action.51 The statute, however, has no application if the terms of lease provide the lessor can terminate the lease on nonpayment of rent.52 It is not a defense to default under the lease for failure to pay rent that the plaintiff lessor failed to make repairs.53 A lease clause allowing an extension of time for performance by the tenant when the ability of the tenant to perform its obligations under the lease is delayed by a cause beyond the tenant's control may serve as a defense to ejectment for nonpayment of rent.54 The tenant generally may not defend by denying the landlord's title.55
When a lease contains a covenant for renewal and the tenant exercises the right to demand renewal of the expiring lease, he or she may be entitled to remain in possession and interpose it as a defense.56 Other possible defenses include waiver of a default57 or estoppel to raise it58 and estoppel for retaliatory eviction. A statute specifically provides that in an action for summary ejectment, a tenant may raise the affirmative defense of retaliatory eviction.59 "The equitable defense of unconscionability is not a consideration in summary ejectment proceedings."60
E. Remedies61
The summary ejectment statute provides three remedies for the lessor: (1) possession of the premises, (2) an award of unpaid rent, and (3) an award for the tenant's occupation of the premises after cessation of the estate.62 In Holly Farm Foods v. Kuykendall,63 the court agreed that summary ejectment terminates a lease and relieves the tenant of liability for future rent absent a contrary provision in the lease agreement, but said that once the lease is terminated, the former tenant, while no longer liable for rent, is liable for damages from the breach of contract. A concurring judge, however, opined that a landlord should not be entitled to any damages after the date of the eviction. In Chrisalis Properties, Inc. v. Separate Quarters, Inc.,64 the court said that monetary relief —...
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