GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	1 

HOUSE BILL 899

Short Title:  Landlord/Tenant Changes.	(Public)

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Sponsors: Representatives Sherrill; Allred, Baker, Barbee, Bowie, Brawley, Cansler, Capps, Clary, Crawford, Culp, Cummings, Davis, Dickson, Dockham, Edwards, Fitch, Hiatt, Holmes, Hurley, Ives, Justus, Locke, McCrary, McMahan, K. Miller, Miner, Mitchell, Morgan, Neely, Nichols, Owens, Pate, Preston, Pulley, Rayfield, Reynolds, Robinson, Russell, Shubert, Tallent, Thompson, Watson, Weatherly, and G. Wilson.

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Referred to:  Judiciary I.

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April 12, 1995

A BILL TO BE ENTITLED
AN ACT TO PROVIDE FOR DISPOSAL OF ABANDONED PROPERTY BY LANDLORDS AND TO AMEND THE LAW OF SUMMARY EJECTMENT BY REDUCING THE TIME ALLOWED FOR A DEFENDANT TO APPEAR IN COURT, BY ALLOWING A LANDLORD TO HAVE UNCLAIMED PROPERTY OF AN EJECTED TENANT PLACED AT THE NEAREST PUBLIC RIGHT-OF-WAY, AND BY REVISING THE APPLICATION OF THE RETALIATORY EVICTION DEFENSE.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 42-25.9 is amended by adding a new subsection to read:
"( g)	Twenty-one days after being placed in lawful possession by execution of a writ of possession and posting a notice of intent to sell personal property, a landlord may elect to enter and remove, store, or sell at public or private sale, after one advertisement at least seven days prior to the date of sale, all items of personal property remaining on the premises and may apply the proceeds of the sale to the unpaid rents, damages, storage fees, sale costs, and attorneys' fees.  Any surplus from the sale shall be disbursed to the tenant or, if the tenant cannot be located, the landlord shall hold the surplus for a period of three months, after which time the landlord shall deliver any remaining proceeds to the government of the county in which the rental property is located."
Sec. 2.  G.S. 42-28 reads as rewritten:
"§ 42-28.  Summons issued by clerk.
When the lessor or his assignee files a complaint pursuant to G.S. 42-26 or 42-27, and asks to be put in possession of the leased premises, the clerk of superior court shall issue a summons requiring the defendant to appear at a certain time and place not to exceed seven days from the issuance of the summons to answer the complaint.  The plaintiff may claim rent in arrears, and damages for the occupation of the premises since the cessation of the estate of the lessee, not to exceed the jurisdictional amount established by G.S. 7A-210(1), but if he omits to make such claim, he shall not be prejudiced thereby in any other action for their recovery."
Sec. 3.  G.S. 42-29 reads as rewritten:
"§ 42-29.  Service of summons.
The officer receiving the summons shall mail a copy of the summons and complaint to the defendant at his last known address in a stamped addressed envelope provided by the plaintiff to the action.  The officer may, within five days of the issuance of the summons, attempt to telephone the defendant requesting that the defendant either personally visit the officer to accept service, or schedule an appointment for the defendant to receive delivery of service from the officer.  If the officer does not attempt to telephone the defendant or the attempt is unsuccessful or does not result in service to the defendant, the officer shall make at least one visit to the place of abode of the defendant within five days of the issuance of the summons at a time reasonably calculated to find the defendant at the place of abode to attempt personal delivery of service.  He then shall deliver a copy of the summons together with a copy of the complaint to the defendant, or leave copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.  If such service cannot be made the officer shall affix copies to some conspicuous part of the premises claimed and make due return showing compliance with this section."
Sec. 4.  G.S. 42-36.2 reads as rewritten:
"§ 42-36.2.  Notice to tenant of execution of writ for possession of property; storage or removal of evicted tenant's personal property.
(a)	When Sheriff May Remove Property. – Before removing a  tenant's personal property from demised premises pursuant to a writ for possession of real property or an order, the sheriff shall give the tenant notice of the approximate time the writ will be executed, to be no more than seven days from the sheriff's receipt thereof.  The sheriff shall remove the tenant's property, as provided in the writ, no earlier than the time specified in the notice, unless:
(1)	The landlord, or his authorized agent, signs a statement saying that the tenant's property can remain on the premises, in which case the sheriff shall simply lock the premises; or
(2) 	The landlord, or his authorized agent, signs a statement saying that the landlord does not want to eject the tenant because the tenant has paid all court costs charged to him and has satisfied his indebtedness to the landlord.
Upon receipt of either statement by the landlord, the sheriff shall return the writ unexecuted to the issuing clerk of court and shall make a notation on the writ of his reasons.  The sheriff shall attach a copy of the landlord's statement to the writ.  If the writ is returned unexecuted because the landlord signed a statement described in subdivision (2)	of this subsection, the clerk shall make an entry of satisfaction on the judgment docket.  If the sheriff padlocks, the costs of the proceeding shall be charged as part of the court costs.
(b)	Sheriff May Store or Remove Property. – When the sheriff removes the personal property of an evicted tenant from demised premises pursuant to a writ or order the tenant shall take possession of his property.  If the tenant fails or refuses to take possession of his property, the sheriff may deliver the property to any storage warehouse in the county, or in an adjoining county if no storage warehouse is located in that county, for storage.  The sheriff may require the landlord to advance the cost of delivering the property to a storage warehouse plus the cost of one month's storage before delivering the property to a storage warehouse.  All costs of summary ejectment, execution and storage proceedings shall be charged to the tenant as court costs and shall constitute a lien against the stored property or a claim against any remaining balance of the proceeds of a warehouseman's lien sale.
At the landlord's request, the sheriff shall, instead of storing any property which collectively can be placed in a 20-gallon plastic container, enclose the property in such a container provided by the landlord and place the property at the nearest public right-of-way where it will not impede pedestrian or vehicular traffic.  The sheriff shall notify the county or municipality of such action, and shall affix a conspicuous, dated notice to the property stating that, on the orders of the sheriff, no person other than the owner of the property may remove the property from the public right-of-way for seven days after its placement there by the sheriff.  No county or municipal employee shall remove the property from the public right-of-way for seven days after its placement there by the sheriff.  A landlord making such a request of the sheriff shall secure the premises during the seven-day time period if property of the tenant that cannot be placed in a 20-gallon plastic container remains on the premises.  At the expiration of the seven-day period, the landlord may dispose of the property by any lawful means without liability to the tenant or the owner of any of the property.
(c)	Liability of the Sheriff. – A sheriff who stores a tenant's property or places the property at the nearest public right-of-way at the landlord's request pursuant to this section and any person acting under the sheriff's direction, control, or employment shall be liable for any claims arising out of the willful or wanton negligence in storing or handling the tenant's property.
(d)	Notice. – The notice required by subsection (a) shall inform the tenant that failure to take possession of any property on the premises at the time of execution may result in removal of the property and placement of the property at the nearest public right-of-way.  Notice shall be made by one of the following methods:
(1)	By delivering a copy of the notice to the tenant or his authorized agent at least two days before the time stated in the notice for serving the writ;
(2)	By leaving a copy of the notice at the tenant's dwelling or usual place of abode with a person of suitable age and discretion who resides there at least two days before the time stated in the notice for serving the writ; or
(3)	By mailing a copy of the notice by first-class mail to the tenant at his last known address at least five days before the time stated in the notice for serving the writ."
Sec. 5.  G.S. 42-37.1 reads as rewritten:
"§ 42-37.1.  Defense of retaliatory eviction.
(a)	It is the public policy of the State of North Carolina to protect tenants and other persons whose residence in the household is explicitly or implicitly known to the landlord, who seek to exercise their rights to decent, safe, and sanitary housing.  Therefore, the following activities of such persons are protected by law:
(1)	A good faith complaint or request for repairs to the landlord,  his employee, or his agent about conditions or defects in the premises that the landlord is obligated to repair under G.S. 42-42;
(2)	A good faith complaint to a government agency about a landlord's alleged violation of any health or safety law, or  any regulation, code, ordinance, or State or federal law that regulates premises used for dwelling purposes;
(3)	A government authority's issuance of a formal complaint to a landlord concerning premises rented by a tenant;
(4)	A good faith attempt to exercise, secure or enforce any rights existing under a valid lease or rental agreement or under State or federal law; or
(5)	A good faith attempt to organize, join, or become otherwise involved with, any organization promoting or enforcing tenants' rights.
(b)	In an action for summary ejectment pursuant to G.S. 42-26, a tenant may raise the affirmative defense of retaliatory eviction and may present evidence that the landlord's action is substantially in response to the occurrence within six months of the filing of such action of one or more of the protected acts described in subsection (a) of this section.
(c)	Notwithstanding subsections (a) and (b) of this section, a landlord may prevail in an action for summary ejectment if:
(1)	The tenant breached the covenant to pay rent or any other substantial covenant of the lease for which the tenant may be evicted, and such breach is the reason for the eviction; or
(2)	In a case of a tenancy for a definite period of time where the tenant has no option to renew the lease, the tenant holds over after expiration of the term; or
(3)	The violation of G.S. 42-42 complained of was caused primarily by the willful or negligent conduct of the tenant,  member of the tenant's household, or their guests or invitees; or
(4)	Compliance with the applicable building or housing code requires demolition or major alteration or remodeling that cannot be accomplished without completely displacing the tenant's household; or
(5)	The landlord seeks to recover possession on the basis of a good faith notice to quit the premises, which notice was delivered prior to the occurrence of any of the activities protected by subsections (a) and (b) of this section; or
(6)	The landlord seeks in good faith to recover possession at the end of the tenant's term for use as the landlord's own abode, to demolish or make major alterations or remodeling of the dwelling unit in a manner that requires the complete displacement of the tenant's household, or to terminate for at least six months the use of the property as a rental dwelling unit."
Sec. 6.  This act becomes effective July 1, 1995, and applies to leases entered into on or after that date.