N.C. Court of Appeals Reviews Commercial and Residential Summary Ejectment Cases

by Womble Bond Dickinson
Contact

This week, the North Carolina Court of Appeals waded in waters it doesn't often visit: the back pools of summary ejectment.

Summary ejectment, for those who don't know, is a statutory procedure for residential or commercial eviction in North Carolina.  The unique process is governed by Chapter 42, Article 3 of the North Carolina General Statutes.

Two cases are on today's docket: (1) a commercial case involving the question as to whether a breach must be "material" to justify ejectment irrespective of lease language, and (2) a residential case involving the question as to whether the district court has jurisdiction to hear an appeal from a magistrate judge as to a defendant tenant's counterclaims.

Commercial Case
In GRE Properties Thomasville, LLC v. Libertywood Nursing Center, LLC COA 13-1180 (August 5, 2014), the Court considered the defendant's argument that North Carolina law "requires breaches of a lease to be material to justify summary ejectment" and defendant's demand that a jury instruction include such a requirement.

The GRE Properties Court affirmed the trial court's refusal to include the "material breach" requirement in an instruction, declining to read such a requirement into the "purely statutory" paradigm of summary ejectment.  Rather, the Court states the law that "a breach of the lease cannot be made the basis of summary ejectment unless the lease itself provides for termination by such breach or reserves a right of reentry for such breach".  In applying that law to the facts, the Court swiftly notes that "Section 19.1 of the lease provided for termination of the lease upon breach of Sections 5.5 and 8.1".

The terms of the lease and State statutory law prevail, in terms of what will permit eviction.  A breach need not be "material" if the landlord and tenant agreed to landlord's reentry and repossession in its event.

Residential Case
In 4U Homes & Sales, Inc. v. McCoy, COA 13-1450 (August 5, 2014), the Court considered cross appeals from plaintiff landlord and defendant tenant regarding judgment in defendant tenant's favor as to her counterclaims.

The facts of this case are involved and sordid, as they often are in residential eviction cases, and are not especially relevant to what we're discussing here.  Rather, procedural posture is what interests us today.

The procedural posture is as follows: (1) plaintiff landlord filed an ejectment action in small claims court, (2) defendant tenant answered in small claims court, denying the ejectment action's allegations and asserting counterclaims, (3) the magistrate judge dismissed plaintiff's summary ejectment suit and entered judgment in defendant's favor as to all of her counterclaims, awarding the jurisdictional maximum of $5,000.00 in rental abatement to defendant, and (4) on appeal from small claims court, the district court entered a judgment dismissing Plaintiff’s claim for summary ejectment, finding in plaintiff landlord’s favor with respect to defendant tenant’s counterclaims for unfair debt collection and unfair
and deceptive trade practices, and awarding defendant tenant $3,705.00 in compensatory damages for plaintiff landlord’s breach of the implied warranty of habitability.

The parties both appealed, though plaintiff landlord did not appeal the dismissal of its ejectment suit.  Rather, plaintiff landlord appealed the judgment as to defendant tenant's counterclaims and the defendant tenant appealed the same.

The 4U Homes Court outlines the two options available to a summary ejectment litigant wishing to assert counterclaims that exceed the $10,000.00 jurisdictional amount: (1) counterclaimants "may either assert their claims on appeal to the District Court from an adverse decision by the magistrate", or (2) counterclaimants may "assert those claims in an entirely separate action".

The 4U Homes Court vacated the District Court's judgment in defendant tenant's favor, which resulted from an appeal from the small claims court, because defendant tenant "received the maximum amount of relief available in that [small claims] forum" such that the appellate court is "unable to see how any of her legal rights were adversely affected" such that defendant landlord had the right to appeal to the District Court.  Essentially, the defendant tenant is limited to the judgment entered at the small claims court level by the magistrate judge, and she is certainly not an "aggrieved party" able to appeal the limited judgment.  Defendant tenant's failure to avail itself of the two options noted above with respect to a counterclaim exceeding the jurisdictional amount limits her recovery.

"I guess we can call this 'deconstructive eviction'."
 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Womble Bond Dickinson | Attorney Advertising

Written by:

Womble Bond Dickinson
Contact
more
less

Womble Bond Dickinson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.