Thursday, September 9, 2010

I Need to Evict a Tenant. If I Sue Will I Get a Money Judgment, Possession, or Both?

In North Carolina a landlord or property manager seeking eviction has the option of choosing to obtain both a money judgment and a judgment for possession or just a judgment for possession, pursuant to N.S.G.S. 42-28. Although it seems that you would want to get both remedies at the same time, this is often not the case

I will start with the reasons why you would not want to get both a judgment for possession and money damages at the same time.

1) You may only be able to sue a tenant for money damages once, and you will only be allowed to sue for damages through the date of trial. Lawyers like to say, "you only get one bite at the apple." You probably will not know the full extent of your money damages until you have obtained possession and access to the rental unit, or possibly until you re-let the unit or the lease expires.

2) You must personally serve the tenant(s), or the tenant must appear in court for a money judgment, but you can serve the tenant(s) by posting the summons and complaint on the property in a judgment for eviction, pursuant to N.C.G.S. 42-29. Generally, you want an eviction action to proceed as quickly as possible so that you can cut your losses and move on. If you have trouble locating the tenant(s) this could delay your action.

3) If you are suing in Small Claims Court, your damages are limited to $5,000.00. Hopefully, your damages will not exceed this amount, especially because you should be holding a security deposit, but the damages can add up quickly.

Reasons to sue for both a money judgment and possession of the rental unit at the same time:

1) You may only need to appear at court one time.

2) You will not have to wait to begin collecting on your money judgment.

3) You may have difficulty locating the tenant after they have been removed from your property.

4) The tenant may be more likely to make payment arrangements if they realize they are facing a money judgment together with the eviction.

Different landlords and property managers will have their own preferences. The important thing is that you make an informed decision and don’t unnecessarily discard your rights.


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