This week’s post is a response to a difficult question many landlords face. Here is the question:
Motor vehicles left on the property after eviction? I know property can be disposed of after a given period of time. However, with cars/trucks, it seems almost impossible to get a junkyard to take a car if there is no title. Does the car actually become disposal property? I did have one incident where I pushed the car out onto a public street, and the town came and took it after a few days. (it had no plates) What is the proper way to handle these incidents?
ANSWER:
Taking it from the top, the first step to lawfully dispose of property is to obtain an eviction from the court, and having the writ of possession served on the tenant. After you have obtained a summary judgment, had the writ of possession served and the lock-out has gone forward, then N.C.G.S. 42-25.9 (g) provides:
"Ten days after being placed in lawful possession by execution of a writ of possession, a landlord may throw away, dispose of, or sell all items of personal property remaining on the premises, except that in the case of the lease of a space for a manufactured home as defined in G.S. 143 143.9(6), G.S. 44A 2(e2) shall apply to the disposition of a manufactured home with a current value in excess of five hundred dollars ($500.00) and its contents by a landlord after being placed in lawful possession by execution of a writ of possession. During the 10 day period after being placed in lawful possession by execution of a writ of possession, a landlord may move for storage purposes, but shall not throw away, dispose of, or sell any items of personal property remaining on the premises unless otherwise provided for in this Chapter. Upon the tenant's request prior to the expiration of the 10 day period, the landlord shall release possession of the property to the tenant during regular business hours or at a time agreed upon. . . ."
That was kind of lengthy but that wasn’t even close to the whole paragraph, I left out the part dealing with the sale of the property. I think it is important that the statute specifically addresses mobile homes left behind, but does not differentiate between motor vehicles and any other personal property.
Now the tenant has no right to store property on the rental premises and you can get rid of the vehicle you should look to the city or county in which the rental premises is located. North Carolina has two mirror statutes that allow for cities and counties to have ordinances regarding disposal of abandoned vehicles, and yes both ordinances allow for the removal of vehicles left on private property. Both N.C.G.S. § 160A-303(city) and N.C.G.S. 153a-132(county) provide that the city or county may have an ordinance providing for removal of a motor vehicle left on private property for more than two hours. Yes , that is right two hours. As an example you can find Wake County’s Abandoned Vehicle Ordinance here: Wake Abandoned Vehicle Ordinance.
So, you should check first with your city and then with your county if they will remove the motor vehicle, or if they can recommend a private towing company that will tow and store the car.
I would guess that while pushing a car into a street may be effective, it could possibly cause you to be fined for placing that vehicle in the street. I assume if you are sophisticated enough to own a rental property that you should be able to evaluate the potential risks and rewards of ridding your rental premises of an unwanted vehicle by placing it in the street.
None of this is to say if a tenant comes for his car or property that you should not give it to him. Generally, you are legally required to give your tenant his property back, and even if you are not legally required, it will usually make your life a lot easier if you return the property.
Another option is to check to see if there is a lien on the vehicle and advise the party holding the lien that the car has been abandoned. They just might claim the car.
Finally, the North Carolina Depart of Motor Vehicles has a contact number for abandoned vehicles at (919) 861-3187, and they may be of some help.
In short, this was very difficult question, that is part of the reason it has taken me so long to complete this post. Also, your answer will vary depending on where your property is located.
Good luck and Happy Landlording!
Sunday, January 23, 2011
Wednesday, January 19, 2011
Super Mutant Bed Bug Update: 1-19-2011
I have noticed that a lot of the viewers of this blog have questions about bed bugs. Eventually I will do a thoughtful post on bed bugs as they figure into North Carolina landlord-tenant law. In the mean time, and eventually in addition to, that post I am going to start including bed bug articles and information as they are released.
The Wall Street Journal has an article on new super bed bugs entitled "Why Bedbugs Won't Die." This heart warming article reveals that the bugs are beginning to beat the pesticides! You can get to this article by clicking here.
Enjoy!
The Wall Street Journal has an article on new super bed bugs entitled "Why Bedbugs Won't Die." This heart warming article reveals that the bugs are beginning to beat the pesticides! You can get to this article by clicking here.
Enjoy!
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.
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.
Sunday, January 9, 2011
What Can You do When Your Tenant Moves Out and Trashes the Unit?
Recently I had a landlord ask me: My tenants told us they were moving out by text message because they could not pay the rent. I was unable to inspect the unit until they left. When I got there the residence was empty, except for piles of garbage bags in the garage. In the spare bedroom I found massive damage to the ceiling, walls and floor. They ripped the carpet out and did an amazing amount of damage to the room. I want to sue the tenants and press criminal charges but I do not understand how to get started in the right direction.
The landlord's question touches on three areas: 1) security deposit; 2) civil suit; and 3) criminal prosecution.
Security Deposit Issues
For starters, hopefully you had a security deposit to at least partially compensate you for the damage. If you had a security deposit you must send an accounting of how the security deposit was applied to the damages within 30 days, if you can figure out the amount of damages within 30 days. If you don't know the total cost of the damages within 30 days, you need to send an interim accounting of how the deposit was applied within 30 and then a final accounting within sixty days. The North Carolina Security Deposit Act can be found at N.C.G.S. 42-50.
Civil Suit
As for a civil suit, the first question is whether you can locate the tenants. If you can, or you hire someone who can, then you may file an action either in small claims court (if under $5k damages); district court (if under $10k damages), or Superior Court (if over $30k in damages). Whether you will need an attorney will depend on the amount of damages, how the property is owned (in your own name or under some sort of business entity), and your level of comfort going to court. Additionally, just because you win and get a judgment against the tenants does not mean that you will be able to collect on the judgment, so you will need to decide whether it is worth the expense of hiring an attorney, or even filing a complaint.
If you file in small claims without an attorney the court clerk's office has forms you can fill out that are fairly simple. If you have any questions the clerk's offices are often very helpful. You will want to take pictures of the unit as you found it, and keep all your receipts to demonstrate the cost of repairs to the court.
Criminal Prosecution of Tenant for Damages
There is a criminal offense under N.C.G.S. § 42-11 entitled "willful destruction by tenant misdemeanor," which makes it a Class 1 Misdemeanor to willfully damage a rental dwelling. You may wish to speak to the sheriff's department or local police about charging the tenant with this offense. You should be prepared for law enforcement not to want to get involved in what they may view as a civil dispute.
What should the landlord have done before he got himself in this position?
Two things come immediately to mind.
1) Regular visits to the rental unit. Make sure your lease provides you the opportunity to drop by the unit from time to time to inspect, and take advantage of this opportunity.
2) Qualify the tenant. Make sure the tenant has a decent credit rating, job and good references.
As a landlord you have to be vigilant. Absentee landlords often end up having their profits absent as well. Good luck and Happy Landlording!
The landlord's question touches on three areas: 1) security deposit; 2) civil suit; and 3) criminal prosecution.
Security Deposit Issues
For starters, hopefully you had a security deposit to at least partially compensate you for the damage. If you had a security deposit you must send an accounting of how the security deposit was applied to the damages within 30 days, if you can figure out the amount of damages within 30 days. If you don't know the total cost of the damages within 30 days, you need to send an interim accounting of how the deposit was applied within 30 and then a final accounting within sixty days. The North Carolina Security Deposit Act can be found at N.C.G.S. 42-50.
Civil Suit
As for a civil suit, the first question is whether you can locate the tenants. If you can, or you hire someone who can, then you may file an action either in small claims court (if under $5k damages); district court (if under $10k damages), or Superior Court (if over $30k in damages). Whether you will need an attorney will depend on the amount of damages, how the property is owned (in your own name or under some sort of business entity), and your level of comfort going to court. Additionally, just because you win and get a judgment against the tenants does not mean that you will be able to collect on the judgment, so you will need to decide whether it is worth the expense of hiring an attorney, or even filing a complaint.
If you file in small claims without an attorney the court clerk's office has forms you can fill out that are fairly simple. If you have any questions the clerk's offices are often very helpful. You will want to take pictures of the unit as you found it, and keep all your receipts to demonstrate the cost of repairs to the court.
Criminal Prosecution of Tenant for Damages
There is a criminal offense under N.C.G.S. § 42-11 entitled "willful destruction by tenant misdemeanor," which makes it a Class 1 Misdemeanor to willfully damage a rental dwelling. You may wish to speak to the sheriff's department or local police about charging the tenant with this offense. You should be prepared for law enforcement not to want to get involved in what they may view as a civil dispute.
What should the landlord have done before he got himself in this position?
Two things come immediately to mind.
1) Regular visits to the rental unit. Make sure your lease provides you the opportunity to drop by the unit from time to time to inspect, and take advantage of this opportunity.
2) Qualify the tenant. Make sure the tenant has a decent credit rating, job and good references.
As a landlord you have to be vigilant. Absentee landlords often end up having their profits absent as well. Good luck and Happy Landlording!
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