WINSTON-SALEM, N.C. – Affordable housing is hard to come by, especially when living with a disability. Having lived in the same home since 2010, T. Totten* and her disabled mother and sister are now facing eviction.
In 2021, a chain of failed housing inspections, due to property management non-compliance, resulted in the termination of Totten’s Section 8 Housing Voucher. While the Housing Voucher was reinstated by the Housing Authority of Winston-Salem (HAWS) in Sept. 2021, failed inspections continued to threaten Totten and her family’s livelihood.
On May 19, 2022, Totten’s property manager was notified, yet again, by HAWS that the home was “un-inhabitable” and that renovations were necessary to pass inspection. If renovations were not made, and the inspection was not passed, they would have to stop making payments to the property. Later that day, Totten received a Non-Renewal of Lease letter from her property manager stating that she needed to vacate the home in less than 30 days.
“If I left when they wanted me to, I would be homeless,” said Totten. “Me and my handicap mother and sister would have nowhere to go. That’s when I called Legal Aid of North Carolina.”
Once connected with Legal Aid of North Carolina, supervising attorney Edward Sharp informed Totten that a tenant may not be put out of a rental home without being evicted through the courts first. While this was good news, it only delayed the inevitable — eviction.
Totten remained housed for the time being, but the property manager continued to ignore her and the Housing Authority’s repair requests. As a result, HAWS had to cease payments to the property.
Now, months later, the inevitable has arrived. On Nov. 8, 2022, Totten received a Nonpayment of Rent notice stating that she owed over $5,000 in rent, which was meant to be paid through her Section 8 Housing Voucher. If the payments are not made, legal action will be taken against Totten by the property.
The payment deadline has passed, and Totten and her family are struggling to find a new home. With extremely long waiting lists, unsafe living conditions, and little-to-no handicap accessible options, the possibility of homelessness is looming.
“It is very hard to find landlords who are willing to accept Section 8 Vouchers,” noted Sharp. “While the Housing Authority of Winston-Salem actively recruits landlords for the program, it remains a crisis for voucher holders looking for new apartments.”
A team of Legal Aid NC attorneys, paralegals and support staff are working together on Totten’s complicated case, providing her crucial legal advice, and connecting her with a social worker to assist in finding Totten and her family a new, safe place to call home.
As our Winston-Salem team continues their search to find Totten suitable housing, we urge you to email HelenH2@legalaidnc.org, if you, or someone you know, has a lead on handicap accessible, Section 8 Housing.
*Name partially redacted for client confidentiality
Tenant education is our first line of defense against the damaging effects of eviction in our communities. We partnered with the Charlotte Executive Leadership Council and the Foundation for the Carolinas to create the Tenants Toolkit, a guide comprised of information, actionable tasks and policy guides, broken down by topic. Because when properly equipped with the Tenants Toolkit, we believe we can have better shared outcomes in our communities.
While it may seem like the landlord/tenant relationship favors the property owner, there are protections in place that level the playing field. In part one of this chapter of The Tenants Toolkit we’ll learn just what safeguards are in place to protect tenants against unfair housing situations. 14 min
Tenant Rights 2
While it may seem like the landlord/tenant relationship favors the property owner, there are protections in place that level the playing field. In part two of this chapter of The Tenants Toolkit we continue to learn just what safeguards are in place to protect tenants against unfair housing situations. 11 min
The Eviction Process
What should you do if you find yourself with an eviction notice? In this episode of The Tenants Toolkit, we learn just what it means to receive a notice, how long you have to act, and what you can do between the notice and your court date to protect yourself and your family. 18 min
Do you know what’s in your lease? When it expires? What parts of your rental agreement may be illegal and just when your landlord can begin the eviction process? In this episode of The Tenants Toolkit, we find out what might be hidden in your lease, and how to use that information to defend yourself against an eviction. 10 min
Low income families have help but knowing where to look and having some patience is a large part of the game. In this episode of The Tenants Toolkit, we learn about housing subsidies and the types of housing it can cover. 16 min
In this episode of The Tenants Toolkit, a financial expert walks us through the process of establishing a budget, sticking to it, making sound financial decisions, and making sure that you are paying your rent on time. 24 min
Evicted in Charlotte
Renters in Charlotte get evicted at a rate twice the national average. In this episode of The Tenants Toolkit, we explore the affordable housing situation in Charlotte and Mecklenburg County, and discover just who is affected most in this crisis. 13 min
Evictions from a mobile home lot are a lot like evictions from apartments and houses. A landlord must still go to court to evict people who own or are buying their mobile homes and rent a lot from a landlord. However, there are some important differences that are set out below.
Notice for persons who rent a mobile home lot
If a tenant does not pay lot rent, breaks (“violates”) the lease, or is involved in criminal acts, then the lease for the lot will usually say what notice — if any — a landlord must give the tenant before going to court. “Notice” means that the landlord will tell the tenant what will take place so many days before ending the lease.
If the landlord wants to cancel or terminate the lease, then the landlord must tell the tenant (“give notice”) at least sixty (60) days before the end of the current rental period, regardless of the term of the tenancy.
If a tenant lives in a mobile home park and the owner of the mobile home park plans to stop renting lots and use the property for something else, the owner must give the tenant and the North Carolina Housing Finance Agency 180 days’ notice before the tenant is required to vacate. If the owner does not give this 180 days’ notice, then the tenant can use this lack of proper notice to stop the eviction in court.
When the landlord gets a court order for an eviction from a mobile home lot
Within ten (10) days from when the landlord gets a court order to evict the tenant from the mobile home lot, the tenant can:
Move the mobile home from the lot.
Appeal the eviction order and pay rent (“bond”) into court as required during the appeal. Visit our Eviction Appeals page to learn more.
If the tenant does nothing during these 10 days or appeals but does not pay the full rent bond into court on time, then the landlord can enforce the eviction order to lock the tenant out of the mobile home. To do this, the landlord will go to the clerk of court for a Writ of Possession. A Writ is a court order that directs the sheriff to make the tenant move. The clerk sends the Writ to the sheriff.
The sheriff will mail or deliver the Writ of Possession to the tenant a few days before coming to the mobile home to require the tenant to leave and padlocking the mobile home. The Writ will state the date and time when the sheriff will come to evict the tenant from the home and padlock it so the tenant cannot return.
A tenant will have twenty-one (21) days after the padlocking to move the mobile home from the lot and take any personal property from the lot. If the tenant does not move the mobile home or other property from the lot, then the landlord gets a lien on the remaining mobile home and personal property. A lien is a right by the landlord to keep the mobile home and other property until the tenant pays what is owed to the landlord such as rent, damages, and repairs to the lot.
Represéntese en una audiencia de desalojo en un tribunal de reclamos menores
Citación y Demanda
Su arrendador (landlord) ha presentado un caso de desalojo en contra de usted. Debe haber una Citación y una Demanda. Debe haber una audiencia en la corte antes de que el arrendador pueda desalojarlo.
Partes. El Demandante (Plaintiff) es su arrendador. Usted es el Demandado (Defendant).
Demanda. La demanda indica las reclamaciones que el arrendador tiene en contra de usted. Ponga atención al párrafo 3.
Citación. La citación es un aviso. Le proporciona la fecha, el lugar, la sala en la corte, y la hora de su audiencia.
Audiencia en el Tribunal de Reclamos Menores
Si desea disputar las reclamaciones del arrendador, debe ir a la audiencia, y debe llegar al menos 15 minutos antes de la hora indicada. Lleve la citación para ayudarle a encontrar la sala correcta.
Si no llega a la corte a tiempo, el magistrado puede tomar una decisión en contra de usted. El magistrado puede decidir que usted se tiene que mudar. El magistrado también puede decidir que usted debe renta u otros costos.
Usted no tiene que ir a la corte. No será arrestado por no asistir a la audiencia, pero si no asiste, el caso será presentado y el magistrado tomará su decisión basado en la evidencia proporcionada por su arrendador.
La audiencia. Su arrendador presentó el caso en la corte y hablará primero. Su arrendador puede tener testigos que testifiquen. Usted puede hacer preguntas al arrendador y a sus testigos.
Cuando el arrendador termine, será su turno. Hable sobre su caso y por qué no debería ser desalojado. El magistrado o el arrendador pueden hacerle preguntas. Escuche bien a las preguntas. Mantenga sus respuestas cortas y respetuosas. Dígale al magistrado si usted tiene testigos. Cuando testifiquen, hágale preguntas.
Esté preparado. Debe estar listo para presentar su caso. Es su responsabilidad de presentar todos los hechos, reclamos y defensas que desea que el tribunal considere.
Consejos. En la audiencia, puede representarse a sí mismo o puede tener un abogado. Si se representa, aquí hay algunos consejos.
Sea respetuoso. Llame al magistrado “Su Señoría”. No interrumpa al magistrado ni a los testigos.
Sea persuasivo. Dígale al magistrado que quiere hacer declaraciones, y cuáles son. Las posibles defensas están en el otro lado de esta página.
Lleve notas con usted. Tenga una lista escrita de los hechos importantes y sus reclamos. Esto le ayudará a recordar qué decirle al magistrado.
Lleve sus documentos con usted. Lleve su contracto de alquiler, sus recibos de pago, las solicitudes de reparación, los informes de inspección y cualquier otro documento. Debe tenerlos con usted si desea usarlos.
Debe tener tres copias de los documentos que quiere mostrar al magistrado. Una copia es para el magistrado, una copia es para el arrendador y la tercera es para usted.
Evidencia electrónica. Imprima cualquier información de un teléfono que quiera usar. Esto incluye textos, correos electrónicos e imágenes. El magistrado no mirará su teléfono.
Posibles defensas para los arrendatarios. Una o más de las siguientes defensas pueden detener el desalojo.
Usted no debe alquiler. El arrendador dice que usted debe más renta mensual de la que acordó pagar. O bien, usted realizó pagos que no se han abonado en su cuenta de alquiler.
No violó el contrato ni las “reglas de la casa” que forman parte del contrato.
Pagó el alquiler o entro en un nuevo contrato de alquiler después de una violación del contrato. Si eso sucedió, es posible que el arrendador haya renunciado a su derecho a desalojarlo.
Usted ofreció el alquiler a tiempo, pero el arrendador se negó injustamente a aceptarlo.
No recibió el aviso correcto. El arrendador no le dio aviso de desalojo o el aviso es insuficiente.
Discriminación: El motivo del arrendador para desalojarlo es discriminación ilegal (por ejemplo, según su raza, religión, sexo, discapacidad u origen nacional).
Violencia doméstica: La violencia doméstica ocurrió en su hogar. El motivo del arrendador para desalojarlo es que usted fue víctima de violencia o que alguien que vive con usted fue la víctima.
Condiciones problemáticas: Usted ha pedido reparaciones. El arrendador no hizo las reparaciones. Es posible que no deba el alquiler completo.
Desalojo vengativo: El arrendador quiere desalojarlo por sus quejas o solicitudes de reparaciones.
Desalojo ilegal: Antes del caso judicial, el arrendador hizo algo ilegal para intentar de desalojarlo. Ejemplos: El arrendador cambió la cerradura, o cortó el agua o la energía, o se rehusó a reparar el cableado o el aire acondicionado o la calefacción o la plomería.
No pagar la renta porque perdió su trabajo, pagó reparaciones del automóvil o pagó algún otro gasto de emergencia no es una defensa válida. Sin embargo, puede tener una defensa diferente.
Su derecho a apelar
Si se ordena el desalojo, no tiene que mudarse de inmediato. Usted tiene el derecho de apelar.
Si desea apelar. TIENE 10 DÍAS DE CALENDARIO (NO DÍAS HÁBILES) PARA APELAR. NO LE DARÁN TIEMPO ADICIONAL PARA PRESENTAR SU APELACIÓN. Los diez días comienzan el día después de la audiencia. Puede apelar incluso si no asistió a la audiencia. Apelar le otorga una nueva audiencia en la corte del distrito. Para apelar y quedarse en su hogar hasta la audiencia del tribunal de distrito, debe presentar los documentos de apelación en el tribunal y pagar el alquiler en el tiempo debido. También es posible que tenga que pagar las cuotas de la corte (en algunas situaciones las cuotas pueden ser perdonadas) y el alquiler debido.
Si no apela el desalojo. Puede permanecer en el hogar durante 10 días de calendario (NO días hábiles) después de que el juez ordena el desalojo. Los diez días comienzan el día después de la audiencia. No tiene que pagarle dinero al arrendador para quedarse en su casa durante esos 10 días. Solo el sheriff (alguacil) puede desalojarlo.
Hable con un abogado para conocer sus derechos.
Llamar 1 (866) 219-LANC (5262) para solicitar ayuda de Legal Aid of North Carolina y conozca otras formas de obtener ayuda legal.
How to represent yourself in an eviction hearing in small claims court
Summons and Complaint
Your landlord has filed an eviction case against you. You should receive a summons and complaint. There must be a hearing at court before the landlord can make you move.
Parties: The Plaintiff is your landlord. You are the Defendant.
Complaint: The complaint states the landlord’s claims against you. Pay special attention to paragraph 3.
Summons: The summons is a notice. It states the date, place, courtroom, and time of the hearing.
Small Claims Hearing
Be on time. If you want to dispute the landlord’s claims, you should go to the hearing, and you should be there at least 15 minutes early. Take the summons with you to help you find the right courtroom.
If you are not at court on time, a magistrate can make a decision without you. The magistrate can decide that you have to move. The magistrate might also decide that you owe rent or other costs.
You do not have to come to court. You will not be arrested for not coming to the hearing, but if you do not come, the case will proceed and the magistrate will rule based on your landlord’s evidence.
The hearing. Your landlord filed the court case and speaks first. Your landlord can have witnesses testify. You can ask questions to your landlord and your landlord’s witnesses.
When your landlord is done, it will be your turn. Talk about your case and why you should not be evicted. The magistrate or landlord can ask you questions. Listen to the questions. Keep your answers short and respectful. Tell the magistrate if you have witnesses. When they testify, ask them questions.
Be prepared. You must be ready to make your case. It is your responsibility to discuss all the facts, claims and defenses that you want the court to consider.
Tips. At the hearing, you can represent yourself or have a lawyer. If you represent yourself, here are some tips.
Be respectful. Call the magistrate “Your Honor.” Do not interrupt the magistrate or a witness.
Be convincing. Tell the magistrate that you want to make claims, and what those claims are. Possible defenses are listed below.
Take notes with you. Have a written list of the important facts and your claims. This will help you remember what to tell the magistrate.
Take your documents with you. Take the lease, rent receipts, repair requests, inspection reports, and other documents. You must have those with you if you want to use them.
Have three copies of any documents that you want to show to the magistrate. One copy is for the magistrate, one copy is for the landlord, and the third is for you.
Electronic evidence. Print any information from a phone that you want to use. This includes texts, e-mails, and pictures. The magistrate will not look at your phone.
Possible defenses for tenants. One or more of the following defenses may stop the eviction.
You do not owe rent. The landlord claims that you owe more monthly rent than you agreed to pay. Or, you made payments that have not been credited to your rent account.
You did not violate the lease or any “house rules” that are part of the lease.
You paid rent or made a new lease after a lease violation. If that happened, the landlord may have waived, or given up the right to evict you.
You offered the rent on time, but your landlord wrongfully refused to accept it.
You did not get correct notice. The landlord gave you no notice or not enough notice.
Discrimination. The landlord’s reason for evicting you is illegal discrimination (for example, based on your race, religion, gender, handicap, or national origin).
Domestic violence. Domestic violence happened in your home. The landlord’s reason for evicting you is that you were the victim of violence, or someone living with you was the victim.
Problem conditions. You asked for repairs. The landlord did not make repairs. You may not owe the full rent.
Retaliatory eviction. The landlord wants to evict you because of your complaints or requests for repairs.
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.
Not paying rent because you lost your job, paid for car repairs, or paid some other emergency expense is not a valid defense. You may, however, have a different defense.
If the eviction is ordered, you do not have to move right away. You have the right to appeal.
If you want to appeal. You have 10 calendar days (not business days) to appeal. You cannot have any extra time to file the appeal. The 10 days start on the day after the hearing. You can appeal even if you do not attend the hearing. Appealing gets you a new hearing in district court. To appeal and stay in your home until the district court hearing, you must file appeal documents at the courthouse and pay rent as it comes due. You also may have to pay filing fees (they can be waived in some situations) and past due rent.
If you do not appeal the eviction. You may stay in the home for 10 calendar days (NOT business days) after the judge orders the eviction. The 10 days start on the day after the hearing. You do not have to pay any money to your landlord to stay in your home during those 10 days. Only the sheriff can make you move out.
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.
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.
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.
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.
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.
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.
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.
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.
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 appealduring 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.
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.
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:
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.
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.
While the landlord testifies:
Take notes, such as questions you want to ask when it is your turn to do so.
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.
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.
If the landlord has witnesses, listen carefully and write the questions you want to ask them. You may not need to ask any questions.
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.
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
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:________________________________________________________________
End your testimony by telling the magistrate everything you want her/him to do.
Ask the magistrate to decide that you do not owe court costs.
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!
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.
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.
The landlord cannot lock out a tenant without going through the court process. A landlord must file court papers, have a hearing in small claims court, and get an eviction order. After the landlord files the court papers, the sheriff mails the papers to the tenant, delivers them to the tenant, or posts the court papers on the front door. The small claims court hearing is usually heard during the same week that the court papers are filed. This means that tenants may not get the court papers in time to get to the hearing, or they may not be prepared to defend against the eviction.
Can a tenant appeal an eviction order?
Yes. Even if a tenant misses a court date or loses in small claim court, the tenant may appeal the eviction order. Tenants who file an appeal will get a new trial in district court in front of a different judge.
When must a tenant appeal an eviction order?
A tenant must file an appeal of the eviction order no later than ten (10) calendar days after the magistrate or small claims judge orders the eviction in court. The 10 days includes Saturdays, Sundays, and holidays. If the tenth day is a Saturday, Sunday, or a holiday, then the tenant has until the next business day to file an appeal.
If the court does not announce the eviction order the day of trial and mails it to the tenant instead, the tenant gets thirteen (13) days from the day the eviction order is entered.
If the appeal is not filed on or before the deadline, then the tenant loses the right to appeal and will be evicted.
Is there a fee to file an appeal? How much does an appeal cost?
It usually costs $150 to file an appeal in court. You may not have to pay these court costs if you receive food stamps, Supplemental Security Income (SSI) or cannot afford this fee. In the following section, see “Petition to Proceed as an Indigent” in the numbered list to learn how to ask the clerk of court to waive or forgive the court costs.
What forms or court papers are required?
There are three (3) important court forms for tenants who want to file an appeal. These forms are found on the NC Courts website.
Notice of Appeal (download the form): This form lets the court and landlord know that the tenant is appealing the case. The tenant must mail or hand-deliver a copy of the Notice of Appeal to the landlord when the appeal is filed.The tenant must fill out and sign the Certificate of Service section on the back of the Notice of Appeal form. If not, the court may dismiss the appeal.
Petition to Proceed as an Indigent (download the form): This is a fee waiver form. It allows the tenant to file the appeal without paying the $150 court costs. It also allows the tenant to appeal without paying all of the rent that may be due (as described in the “How much is the rent bond?” section below). The court will usually allow a fee waiver if the tenant receives Supplemental Security Income (SSI) payments, TANF, or food stamps; if the tenant is represented by a nonprofit legal services organization; or if the tenant swears under oath that he or she is otherwise unable to afford the court costs of the appeal. In some counties, clerks may require proof that the tenant cannot pay the court costs (like a copy of the tenant’s EBT card or a Social Security award letter, or an affidavit called a Civil Affidavit of Indigency). The Petition to Proceed as an Indigent — and the Civil Affidavit of Indigency, if required — must be notarized.
Bond to Stay Execution (download the form): This is the form that the tenant submits with the rent they pay to the clerk of court. A tenant who pays the rent bond can stay in the home until the new court date.
How much is the rent bond?
The rent bond will be different for every tenant who appeals. The amount of the rent bond will depend on these factors
Tenants must pay any undisputed or back rent they owe except when they do not have to pay the court costs. This means that the clerk of court has waived the court costs because the tenant is indigent.
Tenants who are being evicted for nonpayment of rent must pay a pro-rated amount of rent calculated from the day the judgment was entered to the end of the month, if the judgment date is five (5) days or more before rent is next due.
ALL tenants must pay their monthly rent within five (5) business days of when it is due.
Tenants who receive a rental subsidy, like Section 8, only pay their portion of the rent. Again, these payments are made to the court, not the landlord.
Tenants who do not pay the rent bond on time may be evicted. The appeal will still go to trial before a new judge.
Is there help for a tenant to fill out the court form?
Legal Aid of North Carolina recorded this step-by-step tutorial on how to fill out all three forms.
What happens if a tenant misses the appeal deadline or a bond payment?
If a tenant does not file an appeal in time or misses a bond payment, the landlord may file a Writ of Possession. The Writ is an order that directs the sheriff to remove the tenant from the property, then the landlord will change the locks. If a tenant is late on a bond payment, the court may accept it so long as the landlord has not filed the Writ yet.
The landlord must let the tenant into the property one time during regular business hours to remove any remaining belongings for seven (7) days after the lockout (unless the belongings are worth less than $500, in which case the tenant gets five (5) days). After that, the landlord may dispose of the belongings.