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RONB-ESQ
RONB-ESQ, Attorney
Category: Landlord-Tenant
Satisfied Customers: 357
Experience:  Right of Way Manager at Access Midstream Partners, LP
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I am an owner with out a writing lease. up against a renter

Customer Question

I am an owner with out a writing lease. up against a renter without a lease the renter is a hold over the renter has not pay ed rent for two month. the renter had my house
inspected no code violation that would allow her to live free. what can I sue her for to get my house back
Submitted: 11 months ago.
Category: Landlord-Tenant
Expert:  RONB-ESQ replied 11 months ago.

Hello my name is ***** ***** I am a licensed attorney. I welcome you to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. The question and response may be viewed by other parties as noted in JA’s terms of service. By continuing, you confirm that you understand and agree to these terms.

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Have you taken any action yet or left her/him any notices yet?

To confirm the rental is in North Carolina and could you confirm which County?

Expert:  RONB-ESQ replied 11 months ago.

I am assuming here the tenancy was a month to month tenancy or paid on a weekly basis prior to hold over. If that is not the case you may be able to provide less than a 7 day notice to quit and/or Notice to Terminate Lease. I would do all of the following if possible the more the better 1) hand notice to tenant, 2) post notice securely on the door (take photo of same), 3) send notice to tenant at that location via first class mail. To confirm mailing you could send certified (But not requiring tenant to sign for it). Speak to post office, but you can send letter certified and they will stamp a receipt showing you mailed it, but it does not require tenant to sign for it. You should also be able to print out tracking info from USPS showing it was delivered.

Being conservative you could add 3 days to the 7 notice you mail, but if you hand it to tenant the 7 days starts upon receipt.

After you have waited 7-10 days based on notice then you go to the small claims court in the County where the property is located and request information on filing an ejectment action or simply say eviction and they will know what you are talking about. You should name the tenants as defendants and in the same action file claim for the unpaid rent to date. The Clerk will charge you a filing fee and then also likely charge you the fee on behalf of Sheriff to serve the summons upon tenant. This is not something you do the sheriff or constable will do that for a set fee.

You will be given a speedy Court date likely less than 15 days and you or your attorney must show up or you lose. The same goes for tenants they are required to show up or automatically lose, if they show up they can try and argue some defense. I don't know of one they could argue, but even if the dog died last month and grandma this month, the Judge should typically say I am very sorry you find yourself in this situation, but legally I have no option but to rule for landlord. You could use proof of past rent payments to show the actual reasonable value that you are suing for in addition to possession.

The tenants if they lose will have up to 10 days to appeal and you will as well if you don't like the ruling. The tenants should be forced to post 2 x the value of the judgment on deposit with Court before appeal is valid, but most Courts will allow them to sign a statement saying they are indigent and then the appeal will proceed to the next Court.

If they do not appeal, then after the 10 days has expired you can go back to the same Court and pay them for a writ of possession. The Sheriff or constable will again serve this and it will usually be personally served or stapled to rental and indicate that the sheriff will return usually within a few days and padlock the door. At this point you are required to safeguard the tenants property depending on value for the next 7 days and should send them written notice to the last known address that they must pick up all personal items or they will either be sold or disposed of. To protect yourself I would send this notice to 1) any forwarding address they have provided or 2) to the rental if that is the last known address. I would send this one certified mail return receipt requested and via first class (single stamp). You then have prove that one they signed for the document or two you sent first class mail and it was not returned so it is presumed that it reached them even though they wouldn't sign for the certified mail. As noted this may simply be sent back to the rental if they did not provide you a written forwarding address and did not provide the Court as example in a notice of appeal a new address.

Taking these actions will just protect you from some claim at a later date that you didn't give them notice and then trashed all their property. For the same reason I would ask someone to witness you video the general possessions left behind or write down an inventory before you sale or trash the items.

Here you can read the actual statute that applies http://www.ncleg.net/gascripts/Statutes/StatutesTOC.pl?Chapter=0042 read Article 2A & 3.

I also found this site that might be easier to read https://www.landlordology.com/north-carolina-landlord-tenant-laws/ THIS IS A COMMERCIAL SITE, but it does accurately give you citation back to the state statute that you can read at the earlier link. I wouldn't spend money or paying for a notice to terminate as I can probably find you a sample if you don't want to just Write in about size 24 font (not mandated) that you are hereby given 7 days notice to Vacate the premises due to Holdover.

I hope this answers all of your questions. Should you have any additional questions feel free to reply here. Though a phone call is not required, if you would like to call and discuss I can arrange that for an additional cost of $52.

In case you are new to Just Answer I wanted to let you know that I am just an attorney setting at my home office and do not work directly for them. After you leave positive feedback (good-excellent) then I get a portion of what you paid JA. Thank you in advance for leaving positive feedback before you log off. Do note that after leaving positive feedback you are welcome to reply here with any follow up questions you have related to your original question for free as long as needed.

Merry Christmas,

Ron

Expert:  RONB-ESQ replied 11 months ago.

I forgot to mention that not only can you sue for unpaid rent after she held over, but you can seek to recover attorney's fees. Do note that this will just be a judgment (piece of paper where Judge agrees she owes you $X) and if she does not volunteer payment then you would have to take other legal means to collect.

Also the small claims court is quite used to dealing with non attorney landlords as that is where they all have to go for eviction, but if you prefer just to stay out of it you can always retain an attorney and he/she will show up and do everything though you might be needed to testify to prove the amounts owed to you, etc. Some people prefer to just have the attorney handle the bulk so they don't have to interact with the tenant, but feel free as I mention to reply back here with any follow up questions you have.

Expert:  RONB-ESQ replied 11 months ago.

Just fyi I am going out for the evening and if I miss your response just note that I will see it and respond once I am back online tomorrow after 1:00 PM CST

Regards,

Ron

Expert:  RONB-ESQ replied 11 months ago.

I just wanted to follow up and make sure I answered your question. If you have any follow up questions or need me to clarify something just reply here.

In case you are new to Just Answer I wanted to let you know that I am just an attorney setting at my home office and do not work directly for them. After you leave positive feedback (good-excellent) then I get a portion of what you paid JA. Thank you in advance for leaving positive feedback before you log off. Do note that after leaving positive feedback you are welcome to reply here with any follow up questions you have related to your original question for free as long as needed.

Regards,

Ron

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