Monday, January 17, 2011

How Not to Get Your Case Thrown Out of Court for Improper Notice!

This week we are going to look at another recent question I dealt with regarding a landlord who didn't understand the very technical nature of notice requirements under the North Carolina landlord tenant laws.

The Landlord is an LLC that owns two properties and has 2 members. They have never had to evict anyone so they are certainly not experts in this. The tenant hasn't paid rent for months, even after getting an extension and agreeing to pay. In early December, the Landlord gave the tenant written notice of default and asked them to leave. One member went to court in December. He thought they had a lease and told the judge that and she told them to schedule another hearing and bring the lease.

Turns out that a lease was never signed with this tenant. The other member went to the 2nd hearing on Thursday and the judge scolded him when she asked the landlord why they didn't give the tenant a notice and the member said he didn't know he was supposed to. The judge dismissed the case and never gave the landlord an opportunity to request eviction based on a month to month tenancy and more than 7 days notice being given even though she had the letter of notice from early December. What did they do wrong?


Answer:

The short answer is that the landlord probably filed for eviction based on non-payment of rent and did not give the proper notice.

Holdover Notice

The landlord may end the tenancy at the end of the month to month tenancy on
seven days notice pursuant to N.C.G.S. 42-14. If the tenant does not leave
prior to the end of tenancy period then the landlord may file an action for
summary ejectment based on holdover. In the complaint, and before the magistrate,
the landlord should make it clear that he is seeking summary ejectment
due to holdover, and not non-payment of rent. Therefore, if there was a
tenancy from December 1 through the 31, then the termination date would have to
be December 31 and not any date prior. The landlord would not be able to file
for summary ejectment based upon holdover until January 1. Also, the landlord would have to have given the tenant notice prior to December 24.

Notice for Non-Payment of Rent

In the alternative, the landlord may evict for non-payment of rent. In
this case, pursuant to N.C.G.S. 42-3 the landlord must provide the tenant with
notice of the the non-payment and give the tenant 10 days to cure the default, ,
unless there are lease provisions to the contrary. If the tenant fails to cure
at the expiration of the 10 days then the landlord may file a summary ejectment
action based on non-payment of rent. However, if at any time prior to judgment
the tenant pays the past due rent and costs of the suit, then all further
proceedings in the actions must cease, pursuant to N.C.G.S. 42-33.

If the landlord had a good written lease he could have escaped many of the notice requirements. That is a topic for another post though.

Keep the questions coming!

Good luck and happy landlording.

2 comments:

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    Rica
    www.imarksweb.org

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