Eviction Guide

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Introduction

This information can help tenants represent themselves in eviction cases in small claims court.

The eviction process

Small claims court

In small claims court, people make claims that have a value of $10,000 or less. Most eviction cases take place in small claims court. The judge in small claims court is a civil magistrate. There is no jury. You do not need a lawyer in small claims court, but you can have one. Some landlords have a lawyer.

The eviction complaint

In North Carolina, the legal term for eviction is “summary ejectment.” The case starts when the landlord files a document that is called a Complaint in Summary Ejectment, which is also called an “eviction complaint.” In an eviction case, the landlord is the plaintiff. The tenant is the defendant.

In the eviction complaint, the landlord asks the court to order the tenant to move. Often, the landlord also asks the court to make the tenant pay rent, late fees, court costs, money for damage to the property, utility costs, and other costs.

The complaint is served with a summons. A summons is a notice which states the date, time and place of your hearing.

Defenses and counterclaims

To keep from being evicted, you need a legal defense. You likely will need to testify about facts that support your defenses. If you have documents that support your defenses, bring copies to show the magistrate (you must print pictures, texts, or emails from your phone before coming to court). You also can give the magistrate a written answer with your defenses. You are not required to do so, but writing your defenses may help you present your case in an organized and persuasive manner. Possible defenses include:

  • Retaliatory eviction: You have made a good faith complaint or asked for repairs within the past year to your landlord or a housing inspector. You believe that your landlord filed the eviction complaint as a response.
  • Discrimination: The landlord’s reason for evicting you is illegal discrimination (for example, based on your race, religion, gender, handicap, or national origin).
  • Problems with your home: Your landlord has failed to repair problems with your home.
  • Waiver: Your landlord has accepted rent after knowing about lease violations.
  • Domestic violence: The landlord filed the eviction because you are a victim of domestic violence.
  • Disability: You or a member of your household has a disability.
  • Notice: Your landlord failed to give you notice to move as required by your lease or the law.
  • Amount of rent claimed is wrong: You did not agree to the rent rate that your landlord claims is owed or your landlord did not give you credit for all of your payments.
  • Wrongful eviction. Before the court case, your landlord did something illegal to try to make you move. Examples: The landlord changed the lock, or cut off the water or power, or refused to fix the wiring, A/C or heating, or plumbing.
  • You offered the rent on time, but your landlord wrongfully refused to accept it.
  • You did not violate the lease or any “house rules” that are part of the lease.

Being unable to pay the rent is not a legal defense.

A tenant is not excused from paying the rent even if the tenant has a hardship, such as a job loss or a medical emergency, or having bills to pay.

Focus on valid defenses only.

If you believe that your landlord has harmed you in some way, you can file one or more counterclaims against your landlord. If you want to assert a counterclaim, you must do so in writing and file the counterclaim before your trial. Bring copies to trial to give to your landlord and to the magistrate.

Prepare for court

  • Understand the legal reason your landlord is trying to evict you. Look at paragraph 3 of the complaint.
  • Understand if your landlord is asking for a money judgment. Look in the box called “Total Amount Due” just above paragraph 6 to the right.
  • Figure out your defenses.
  • Fill out the Answer/Counterclaims form, file it with the clerk of court, and give a copy to your landlord (in advance or at the trial). If you file counterclaims, you may be able to avoid having to pay the filing fee by giving the court a “Petition to Sue/Appeal as an Indigent” form.
  • You may have witnesses speak for you. Tell your witnesses when and where to come (if necessary, get a subpoena from the clerk and have the sheriff serve it). Encourage witnesses to be early.
  • Make a list of what you want to say in court. Include all your defenses and the important facts. Be careful what you write down because the judge or your landlord may get to see your list. Avoid talking about things that are not relevant to your defenses. Your relevant testimony will be easier to understand and more persuasive if it is not surrounded by irrelevant testimony. Practice what you will say.
  • You must print pictures, texts or emails from your phone before going to court.
  • Gather your evidence (lease, rent receipts, pictures, inspection reports, etc.).
  • Have three sets of all of your items. One set is for the magistrate, one set is for the landlord, and the third set is for you.
  • If your landlord has not made repairs, you can contact the code enforcement division of your city or county government to ask for an inspection. An inspection report could be good evidence to show that you do not owe full rent. (Note: The websites of city and county governments usually have contact information for their code enforcement divisions. Click here for a list of links to city and county government websites.)
  • Think about what questions you want to ask your landlord and make a separate list of those questions.
  • Take extra paper to court for taking notes.
  • Arrange child care for your children. Do not bring small children to court.
  • Dress for court like you would dress for a job interview.
  • Get to court at least 15 minutes early. If you are not on time, you could miss your hearing. Leave plenty of time for traffic and parking.
  • Take your summons with you so you can find the right courtroom.

The eviction hearing

In court, both you and the landlord can testify. You can ask each other questions. You can also show the magistrate receipts, pictures and other evidence.

The magistrate must make a decision based on what she or he hears and sees in court. The magistrate cannot consider any information, whether testimony, documents, pictures, or reports, that have not been presented in court. You will not be allowed to go home and get evidence or a witness you forgot to bring or who failed to show up on time.

Speak slowly and clearly when talking. Be respectful. Direct your statements to the magistrate, not the landlord. Use your checklist to make sure that you testify about all the important facts and that you make all of your defenses and claims. Show all your evidence to the magistrate.

Do not lose your temper or get into an argument with your landlord. If you think your landlord is lying in response to questions from you, don’t try to testify then. You will testify when you are on the witness stand. Do not try to act like a lawyer. Be yourself. Do not interrupt when the landlord talks, or when the landlord’s witnesses talk.

Witnesses and their testimony

You are allowed to bring witnesses with you to court. You are not required to have witnesses. Witnesses are necessary if you do not have direct knowledge of information. For example, if your landlord said something important to your friend but not to you, you need your friend as a witness. Witnesses who can back up your testimony can help persuade a magistrate that you are telling the truth.

Guidelines for witnesses

  • A witness must come to court. A written statement is not allowed, even if it is notarized. The landlord cannot use written witness statements either.
  • A witness must talk about things that they saw or heard. A witness must have direct knowledge of what happened. A witness cannot say what someone else said. That is hearsay. The landlord’s witnesses cannot use hearsay either. However, you and your witnesses can testify about anything the landlord or the landlord’s employees said that is important to your case.
  • A witness can testify only about things that are relevant. That means things that concern your disagreement with the landlord.
  • The best witness is someone who is not biased, meaning that the witness should be someone who has no reason to lie. A neighbor, housing inspector, or social worker might make a good witness. To make sure that a witness comes to court, you can have the sheriff serve the witness with a subpoena. A subpoena can also help a witness get excused from work.
  • If a critical witness who was served with a subpoena does not come to court, you can ask the magistrate to postpone the hearing. A postponement is called a “continuance.”
  • If possible, prepare with your witness before court. Tell the witness what topics you want them to talk about. Make sure that the witness knows what you think they know, and that they will testify how you think they will testify. Practice asking the witness questions and having them answer. Think about questions the landlord may ask the witness and have them practice answering those questions.
  • When your witness testifies in court, you will have to ask them questions. Before court, write a list of the questions you will ask your witness.

Physical evidence

You can show the magistrate receipts, the lease, and other evidence. You may show the magistrate things you believe will help prove your case or explain your testimony. Some examples are pictures, rent receipts, bills, paint chips, letters, and housing inspection reports. Organize your evidence before court. Put it in a folder or envelope so it is easy to find when you are in court. You must show the magistrate all your evidence before you end your testimony. Explain what each thing is. The magistrate may ask you to show your evidence to the landlord before you show it to the magistrate. Get your evidence back from the magistrate after the end of your hearing.

Pictures

  • Choose a good camera. Polaroid pictures are ready right away, but they are often dark and out of focus. If possible, use a high quality phone. You must print the pictures that you want the magistrate to consider.
  • Decide what pictures you need. Use a picture only if it clearly shows something important. For example, a big crack in the ceiling will show up well in a picture. But if your shower has no hot water, it can’t be proven with a picture. Instead of using a picture, tell about the water.
  • Make sure your pictures look good. Remove any distracting items such as garbage, dirty dishes or junk. Make sure the area is clean. If you show the magistrate a picture of a dirty cracked toilet, he may pay more attention to the dirt than the crack. Clean it first. Make sure there is enough light.
  • Keep a record of your pictures. Write a list of what each picture shows. On the list, write the date you took the pictures. Make a copy of the list for the magistrate and for the landlord.
  • Don’t use too many pictures of the same thing. Choose the best one of each item.
  • Use pictures that are in focus and don’t need too much explanation. Show your pictures to a friend. Does your friend have trouble figuring out what is in the picture? If so, the magistrate may have trouble also. Don’t use too many pictures of the same thing. Choose the best one of each item.
  • Take your printed pictures to court and show them to the magistrate during your testimony. Show the magistrate one picture at a time. Be sure to explain what each picture is. You might say, “This picture shows the hole in my bedroom ceiling. You can see where the plaster is still falling down onto my bed.” “This picture shows the broken pipe under my kitchen sink. I had to put this bucket under the sink to keep the water from running onto the floor.” “This picture shows the hole in the wall behind my stove where the rats have been coming in. The hole is about three inches across.”

The magistrate’s decision

After hearing from both sides, the magistrate will make a decision. A magistrate usually decides a case right away, but she or he can take up to five days to decide a case. Make sure you know and understand the magistrate’s decision (if a decision is made that day) before you leave the courtroom. A civil court decision is called a judgment. The judgment will state whether you are to be evicted and whether you owe the landlord any money. The judgment will not be final until 10 days after the hearing. You cannot be put in jail for not paying the judgment.

Settlement

At any time in the case, you may reach an agreement with your landlord. This is called a settlement. If you settle your case, be sure to put the settlement agreement in writing. You and the landlord should date and sign it, and each keep a copy.

Make sure the magistrate knows the case was settled. If the hearing has not yet happened, be sure to go to court on the hearing date. Take the magistrate a copy of the settlement agreement.

If you make an agreement with your landlord after you have lost in small claims court, make sure the written agreement states that the landlord will not evict you based on the magistrate’s judgment. Take the written settlement agreement to the courthouse and ask the clerk to file it with your case documents.

After court, you should not make any payment to the landlord unless and until the landlord agrees in writing that the eviction case is settled, or will be dismissed, or thrown out.

After the small claims hearing, North Carolina law might allow your landlord to take your money and then evict you.

Caution! Get legal advice before you pay any money to the landlord after the small claims hearing.

There are only three things that can stop an eviction: A court order, a landlord’s statement to a deputy on the padlocking date, or a dismissal that is filed with the clerk of court.

An appeal does not end an eviction case. An appeal is a request for a new hearing.

Ten-day appeal period

After the magistrate makes a decision, either party can appeal within 10 days by filing a Notice of Appeal at the courthouse.

The appeal period is 10 calendar days in length. If the 10 days ends on a day when the courts are closed, then the final day is the next day when the courts are open. For example, if the 10 days ends on a Saturday, the final day is the following Monday.

In addition to filing the Notice of Appeal, you must mail a copy to your landlord.

There is a $150 filing fee to appeal. But, if you receive AFDC, Food Stamps, or SSI, you do not have to pay the appeal costs, as long as you fill out and file a “petition to Proceed Sue/Appeal as an Indigent” form. Your signature must be notarized. To avoid being evicted during the appeal, you also will need to file a “Bond to Stay Execution” and to pay your future rent to the court each month until the new court date. If you have not qualified as indigent, you also will have to pay the undisputed back rent to keep from being evicted during the appeal.

The magistrate’s judgment is not final for 10 calendar days. The 10-day period starts on the day after the hearing, or on the day after the magistrate makes a judgment. A tenant’s right to stay in a rental home does not change during that time. Even if you are not at court, or you lose at the hearing, you cannot be forced to leave your home for 10 days after court. Either you or the landlord can make an appeal during the 10-day period.

If you do not appeal during that time or if you do not pay an appeal bond, the landlord can get the sheriff to come to your home to remove you and change the locks or “padlock” the residence.

Padlocking

A few days before the padlocking, you should receive a “Writ of Execution.” A Writ is a court order that directs the sheriff to make you move. You should also get a notice from the sheriff. The notice states the date and time when the sheriff will come to escort you out of the home.

If you have not moved by then, you must leave the residence when the sheriff orders you to go. The law does not allow a landlord to order a tenant to leave.

After being removed, you must arrange with the landlord to remove your property from the home within five to seven days. If you do not, the landlord will have the right to sell your things, throw them away, or otherwise dispose of them. If the landlord sells your things, she or he can keep the money for the rent or other amounts you owe.

Related: Eviction: If the sheriff comes to evict you and padlock the premises

Important words to know

Answer · The legal document the tenant (defendant) files with the court to respond to statements made by the landlord in the complaint. The answer tells the magistrate the tenant’s position, and what defenses the tenant is using.

Answer and counterclaim · The legal document the tenant (defendant) files with the court to respond to statements made by the landlord (plaintiff) and also to make her or his claims against the landlord. A “Counterclaim” is the tenant’s claim(s) against the landlord.

Appeal · After the small claims court decision, either party can file an appeal and ask for a new hearing in district court. An appeal must be filed with the court within 10 days after the magistrate’s judgment.

Breach · To break an agreement, contract, or lease. Breach of the lease is one of the grounds for eviction.

Complaint · The legal document that starts a civil court case. It states the facts and legal reasons for the case. It also states what the person who filed the case wants the court to do.

Continuance · Postponement of the court date.

Defense · A legal reason why the plaintiff should not win the case.

Defendant · The person being sued.

Fair rental values · The amount a tenant would be willing to pay to rent a home, based on the home’s condition, location, size, and other factors. In a counterclaim about bad housing conditions, the tenant will state her or his opinion of the fair rental value of the home in good condition and in bad condition.

Good cause · A good reason for evicting a tenant. “Good cause” is required for evictions from government-assisted housing.

Hearsay · Information a witness has heard about but has not directly seen or heard. Hearsay is generally not allowed in court (there are some exceptions).

Judgment · The decision of the civil court.

Late fee · An extra amount charged when the rent is late. A late fee cannot be more than 5% of the tenant’s share of the monthly rent, or $15, whichever is higher. A late fee cannot be charged if it is not written in the lease.

Lease · A written or oral agreement to rent a home. The landlord agrees to let the tenant live in the home; the tenant agrees to pay rent. Written leases and some oral leases also spell out the arrangements for paying rent and other rules or agreements.

Magistrate · The judge in small claims court. A magistrate does not have to be a lawyer.

Notice · A communication from one person to another, stating something. Two examples of “notice” are: 1) a landlord’s “notice” to a tenant that the lease is being ended; 2) a tenant’s “notice” to the landlord that something needs to be repaired. Sometimes a notice must be given in writing. The tenant’s notice of repair needs does not always have to be in writing, but this is the best way to give notice because it shows when the landlord was informed of a problem and is good evidence that notice was given.

Plaintiff · The person who starts a court case.

Rent abatement · Stopping or reducing the amount of rent because the landlord did not make repairs. The magistrate can order rent abatement for past or future rent, or both.

Retaliatory eviction · The term for an eviction case that is filed because the tenant exercised her or his rights as a tenant within the past year. Retaliatory evictions sometimes happen after a tenant has complained about service or repair needs or has contacted a housing inspector, housing program or a fire department. Retaliatory evictions are not legal.

Summary ejectment · The legal words for eviction. The landlord files a “Complaint in Summary Ejectment” to evict the tenant.

Waiver · The legal term for giving up a right. If the landlord takes rent from the tenant after knowing that the tenant breached the lease, the landlord has “waived” the right to evict the tenant based on that particular breach.

Steps in small claims court

Use this checklist to keep track of your hearing. Check off each step as it happens. Make sure you say everything on your list and give the magistrate copies of all of your evidence. Your day in court may not happen in the exact same order as this checklist, but it should be close.

What you need to say:

  1. If you prepare an Answer or Counterclaims, take 4 copies to court. File one at the Clerk of Court’s office before going to your courtroom. Get the other copies file-stamped by the Clerk. Give copies to your landlord and to the magistrate. Keep a copy for yourself.
  2. If you file a Counterclaim, the landlord may ask the magistrate for more time to get ready for court. If the case is postponed, make sure you know the new date and time.
  3. While the landlord testifies:
    1. Listen carefully.
    2. Take notes, such as questions you want to ask when it is your turn to do so.
    3. Do not interrupt, except to object to testimony that is hearsay or not relevant.Object to testimony that is not based on the landlord’s own first-hand (direct) knowledge. This kind of statement is called hearsay. Hearsay is something the witness didn’t directly observe, but just heard about. An example of hearsay is “the neighbors told me the tenant was causing disturbances and tearing up the apartment.” There are exceptions. The landlord can say what you said, and you can say what the landlord or his employees said.Testimony or other evidence is not relevant if it doesn’t have anything to do with the case. For example, in a case about non-payment of rent, the landlord should not be allowed to testify that you have a pet that is loud.
  4. Ask the landlord questions, if necessary. This is called cross-examination. Limit what you ask. Asking questions gives the landlord the opportunity to say bad things about you.
  5. If the landlord has witnesses, listen carefully and write the questions you want to ask them. You may not need to ask any questions.
  6. After the landlord and all the landlord’s witnesses are finished, you may make a Motion to Dismiss. That is a request to throw out the case. You may make a Motion to Dismiss if you think your landlord did not prove the case. Here are possible reasons for asking the magistrate to dismiss the case:
    • If the landlord did not give the court a copy of the lease or the eviction notice.
    • The landlord admitted to accepting rent after knowing of a breach of the lease.
    • The landlord told you to pay or move, and then filed the eviction case on the next day. The landlord did not wait ten days before filing the case.
  7. Tell your side of the story:
    • The magistrate will give you a chance to tell your side of the story. You may be asked to sit in the witness chair or you may testify from your chair.
    • Only talk about things you know first-hand (what you personally heard and saw).
    • Do not use hearsay. Do not talk about what people said outside of court. You can, however, say what you have heard the landlord or his employees say.
    • Only tell the magistrate things that are relevant to your case. Do not waste time talking about things that don’t have anything to do with your disagreement with the landlord. The magistrate may stop paying attention or lose patience if you take too long.
    • Have all your papers, pictures, receipts and other evidence with you. Show the magistrate everything you want him or her to consider. The magistrate will probably ask you to show each item to the landlord first.
    • If you disagree with the amount of rent that the landlord says is owed, tell the magistrate what you think you owe. Show the magistrate any receipts or other proof of payment.
    • If you disagree with your landlord’s testimony about the reason she or he is trying to evict you, testify what actually happened. For example, he says you created a disturbance, but you can truthfully testify that you were not there, or you were a quiet observer.
    • If you have counterclaims about the condition of your home, go through the list of needs for repairs and services. Explain each one.
      • How long the problem has been there
      • When and how the landlord first learned of each problem
      • How the problem has been bad for you or your family
      • Describe any expenses you have paid because of the problems
      • Show the pictures (if you have them) to the magistrate
  8. If you have Counterclaims for bad housing conditions:
    • Tell your opinion of the FAIR RENTAL VALUE in the bad condition. It is unlikely this amount is zero; people pay something just for storage units.Amount: ________________________________________________________________
    • Tell your opinion of the FAIR RENTAL VALUE if all the repairs had been made. This is usually at least the rent you agreed to pay.Amount: ________________________________________________________________
    • Ask the magistrate to order the landlord to lower the rent or pay you the difference in these amounts:Difference (Rent Abatement):____________________________________Number of Months:____________________________________Total Rent Abatement:____________________________________
    • Ask the magistrate to make the landlord pay you for expenses you paid as a result of the defects:Amount:________________________________________________________________
  9. End your testimony by telling the magistrate everything you want her/him to do.
  10. Ask the magistrate to decide that you do not owe court costs.
  11. Answer the landlord’s questions: After you finish testifying, the landlord may ask you questions. Answer them as best you can. Be brief. BE POLITE AND DO NOT ARGUE!
  12. If you have witnesses, call them to the witness stand before you testify. Ask them questions to bring out the information they need to tell the magistrate. The landlord will have the chance to ask your witnesses questions.
  13. Listen carefully to the magistrate’s decision. The magistrate will probably make her or his decision at the end of the hearing. Make sure you understand the decision. If you don’t understand, ask the magistrate to explain. Sometimes a magistrate needs more time to think about his or her decision. The magistrate may tell you the decision will come in the mail.

If you lose, you have only 10 days to appeal.