Monday, November 29, 2010

Avoiding the Retaliatory Eviction Defense

Ok, you have all of your ducks in a row, you have noticed your tenant, filed your complaint and had it served. Weeks have gone by and now you are finally ready to have your day in court with the hopes that you will soon be rid of a problem tenant. You put on all of your evidence and the tenant denies the claims.

No real surprises here, but then the tenant brings up that they complained to the building inspector eleven months ago. The judge or magistrate, who is just looking for a reason not to evict the tenant, finds that your real motive in the eviction was the complaint to the the building inspector and rules against you. You are left wondering what just happened, and should they have at least bought you a drink first?

To avoid this happening you need to become familiar with the Retaliatory Eviction Defense that can be found under Section 4A of the Landlord Tenant Act at N.C.G.S. 42-37.1.

First off, what is prohibited?

Seeking to evict a tenant for engaging in the following protected activities:
(1) A good faith complaint or request for repairs to the landlord, his employee, or his agent about conditions or defects in the premises that the landlord is obligated to repair under G.S. 42-42 (we addressed NCGS 42-42 in an earlier post);
(2) A good faith complaint to a government agency about a landlord's alleged violation of any health or safety law, or any regulation, code, ordinance, or State or federal law that regulates premises used for dwelling purposes;
(3) A government authority's issuance of a formal complaint to a landlord concerning premises rented by a tenant;
(4) A good faith attempt to exercise, secure or enforce any rights existing under a valid lease or rental agreement or under State or federal law; or
(5) A good faith attempt to organize, join, or become otherwise involved with, any organization promoting or enforcing tenants' rights.

How long can a tenant raise this defense?

A tenant may present evidence that the landlord's action is substantially in response to the occurrence within 12 months of the filing.

Surely, a tenant can't get away with not paying the rent and use Retaliatory Eviction as an excuse!

This is the good news. The act provides that a landlord may prevail in an action for summary ejectment if:
(1) The tenant breached the covenant to pay rent or any other substantial covenant of the lease for which the tenant may be evicted, and such breach is the reason for the eviction; or
(2) In a case of a tenancy for a definite period of time where the tenant has no option to renew the lease, the tenant holds over after expiration of the term; or
(3) The violation of G.S. 42-42 complained of was caused primarily by the willful or negligent conduct of the tenant, member of the tenant's household, or their guests or invitees; or
(4) Compliance with the applicable building or housing code requires demolition or major alteration or remodeling that cannot be accomplished without completely displacing the tenant's household; or
(5) The landlord seeks to recover possession on the basis of a good faith notice to quit the premises, which notice was delivered prior to the occurrence of any of the activities protected by subsections (a) and (b) of this section; or
(6) The landlord seeks in good faith to recover possession at the end of the tenant's term for use as the landlord's own abode, to demolish or make major alterations or remodeling of the dwelling unit in a manner that requires the complete displacement of the tenant's household, or to terminate for at least six months the use of the property as a rental dwelling unit.

What if the Court agrees with the tenant that the eviction is retaliatory?


If the court finds that an ejectment action is retaliatory it shall deny the request for ejectment; provided, that a dismissal of the request for ejectment shall not prevent the landlord from receiving payments for rent due or any other appropriate judgment.

Additionally, the rights and remedies created by the Act are supplementary to all existing common law and statutory rights and remedies. Which means that if the tenant can find any reason at all they will probably try to bring an Unfair and Deceptive Trade Practices Act (UDTPA claim against you. We will be discussing the UDTPA in a post shortly.

What if my lease states that the tenant waives the Retaliatory Eviction Defense?

Too bad. In case you thought that you could do an end run around this law by putting a waiver of this defense in your lease, the legislature made a special point of prohibiting the waiving of this defense.

Knowledge is power, and in the case of property management it can save you a lot of money too.

Happy landlording!

3 comments:

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  3. My family owns a Commercial Real Estate Company and a few Neighborhood Centers. We try to avoid evictions when possible, but recently we had to evict a very difficult, uncooperative tenant. delay eviction

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