EVICTION Q & A

Lots of people have been reaching out to us with increasingly specific legal questions regarding what can happen during an eviction process. We are not attorneys, and this should not be construed as legal advice! However, we reached out to several attorneys who have experience working with tenants to try to answer some of these common questions. Legal Aid of North Carolina also has an excellent guide for tenants’ legal rights, and there are more resources on our resources page.

Much of this could change, depending on how the state and its courts respond to the tremendous housing crisis brought on by huge numbers of renters and homeowners not being able to and/or refusing to pay their rent or mortgage. Regardless, we believe that we are better positioned for this crisis if we understand our inability to pay as an act of shared, collective refusal. Banks, landlords, and politicians want to negotiate with us as individuals–alone, scared, and confused. But we have a power they haven’t begun to understand.

Isn’t there a “no evictions or foreclosures order” right now in North Carolina?

It’s complicated. Chief Justice Cheri Beasley issued a memo on March 15th which at most postpones civil cases until mid-April only delaying the process. This memo does nothing to address the many of us who will be left in extreme debt as this crisis continues. Despite Chief Justice Beasley’s memo and the Sheriff’s department recent statement on evictions the Sheriff’s department has been actively enforcing evictions that were being processed in the courts before and at the time that memo went into effect.

At some point the courts will open back up and evictions that have been put on hold could all be filed at once. The debt that many folks will be left in during this crisis will also likely result in an increased wave of evictions. All of this is to say, we’re stronger if we face this threat collectively, and find ways to support one another and put pressure on landlords and the city council to #cancelrent entirely. They will not do this on their own.

Please sign the petition that STOP EVICTIONS NETWORK is circulating to demand that Judge Evans issue a continuance on ALL evictions for the next 30 days.

If we are evicted, do we have to pay court fees? Do we have to pay our landlord back the unpaid rent? What if we are not able or refuse to Pay Rent?

If a tenants gets evicted, they’re usually still on the hook for the unpaid rent. It may or may not be in the form of a judgment, but they owe the money. The debt doesn’t go away just because they move.

Whoever wins the case can get court filing fees from the other party ($96 if it’s a small claim filing, plus $30 for each tenant served), plus an attorney fee of 10% of one months’ rent if the lease specifies. NCGS 42-46 specifies some other fees that can be charged if the lease specifies but almost never are; basically the landlord can pick one fee among about 4 and they always pick the filing fee.

Whether and what the tenant has to pay depends on the kind of judgment. If there is a money judgment in district court, then the landlord can file the paperwork with the sheriff to collect the money. The are constitutional and statutory protections establish maximum amounts that can be taken from a person- $35,000 for a house, $3500 for a car, $5000 in personal property etc. Generally the sheriff seizes property to be sold to pay off the judgment, and it usually involves selling a house or a car. A money judgment can also act as a lien on real property. If a person does not own real property or a very expensive car then they can usually avoid having property seized.

North Carolina does not allow wage garnishment for money judgments. If the landlord wants to try to collect a judgment they will have to serve the former tenant with a Notice of Right to Claim Exempt Property (or something like that), and a person must list all of their exempt property to protect it from being seized and return in within 20 days of receiving the notice. According to the lawyers we talked to, this is a long expensive process for the landlord and most landlords know they won’t get more than it costs to file, so generally they just report any balance to a credit agency.

IF WE ARE EVICTED AND DON’T PAY THE RENT WE OWED OUR LANDLORDS, COULD WE FACE JAIL TIME?

It was the shared opinion of the lawyers that we spoke to that failure to repay a money judgement likely cannot be punished with jail time. Supreme Court precedent forbids locking people up who are too poor to pay. However, states have incarcerated people for failure to pay. So jail time is possible, but unlikely.

How will an eviction affect OUR ability to find housing in the future?

Having an eviction judgment or unpaid balances to prior landlords makes it more difficult to rent.A judgment in a summary ejectment case is public record, and landlords often search to find them. If you get all the way to small claims court and do not settle outside of court, and lose, you will have a judgment on your public record. This happens even when there is no money judgement. When there is a money judgment and it goes unpaid that can appear on your credit report as an collection. Not all landlord do a public record search and a credit check before leasing a place to live, but it is common.

What happens if the unpaid rent “debt” that we accrue during a strike exceeds the value set for the small claims court ($10,000)? How would an eviction proceeding proceed in that context?

A summary ejectment can be broken down into two parts- possession and money owed.

Generally in Durham a landlord will only get a judgment for possession in small claims court. A judgment for possession just means the tenant must vacate the property. Possession does not have a dollar value so even if more than $10,000 is allegedly owed it will likely be filed in and proceed in small claims court, and again the landlord will only get awarded possession not money.

In small claims court there is a cap of $10,000. If more than $10,000 is contested then landlords will often file in district court, which has a higher cap. Occasionally in small claims court a landlord will seek a money judgment beyond the small-claims cap of $10,000. Typically when this happens the magistrate will mitigate down the award down to $10,000. The magistrate may also dismiss the claim for money owner without prejudice but still proceed with the claim for possession. Occasionally the magistrate will allow the landlord to amend their complaint on the fly, but it all depends on the magistrate how the case will go.

If an appeal is made to district court generally the court will award money damages for unpaid rent. You do not have to appeal but the landlord may. One benefit of appealing is it does drag out the eviction process but you risk the award for money damages.

You may also get to district court if a landlord to files in district court initially. This is less common but can happen.

Also it’s worth noting as protections increase for tenants hoping to stay in possession, we might see an increase in magistrates awarding money judgments, so it is not entirely predictable when and how much money judgments will be awarded to landlords. It comes down to the magistrates discretion.

If the complaint in summary ejectment is served by posting by the sheriff (which almost all are in Durham) then the court only has quasi in rem jurisdiction, and can only get a possession judgment. A tenant gives the court personal jurisdiction if they appear in court however, which gives the court the ability to give a money judgment. Not going to court in that scenario is one way to avoid a money judgment. The landlord will still report any unpaid balance to credit agencies.