Tenant s Rights

1. Tenant�s Rights 2005 Fall Magistrates Conference Joan Brannon

2. Residential Rental Agreements Act GS 42-38 to -44 Landlord has duties regarding residential rental property No longer have caveat emptor Doesn�t apply to transient occupancy in a hotel, motel or similar lodging vacation rental agreements dwelling furnished without charge or rent

3. Duties of Landlord Comply with housing and building codes Keep premises in a fit and habitable condition Keep common areas in safe condition Maintain in good working order and promptly repair electrical, plumbing, heating, and other facilities and appliances supplied Install smoke detector and keep in good repair.

4. Warranty of Habitability What does fit and habitable mean? �Material violation of the housing code or otherwise not fit and habitable� [Miller v. C.W. Myers Trading Post, 85 N.C. App. 362 (1987)] Do defects render dwelling wholly or partially uninhabitable to reasonable person? Factors to consider compliance with housing and sanitary codes does defect affect vital facility length of time defect persisted age of dwelling did tenant cause defect

5. Notice/How Long to Repair Failure to maintain in good working order and promptly repair written notice except in emergency Failure to provide fit and habitable premises, statute doesn�t speak to notice Oral notice will suffice [Surratt v. Newton, 99 N.C. App. 396 (1990)] Maybe no notice if unfit when move in Time to repair�reasonable time

6. Landlord is not released from duties under act by tenant�s explicit or implicit acceptance of landlord�s failure to provide premises required by statute May contract in writing after lease signed where tenant agrees to perform work for adequate consideration other than leasing of premises

7. Tenant�s Remedies Any right or obligation under Chapter enforceable by civil action in addition to any other remedies available at law Action includes recoupment, counterclaim, defense, set off and any other proceeding including an action for possession [GS 42-40(1)] Rent abatement action Other remedies�unfair trade practice [Stanley v. Moore, 339 N.C. 717 (1995)] Landlord means owner and any rental mgt company or any other person having the actual or apparent authority as a agent to perform duties imposed by article

8. Rent Abatement Action Statute of limitations for rent abatement action is 3 years [Miller v. C.W. Myers Trading Post, 85 N.C. App. 362 (1987)] Tenant entitled to recover difference between the fair rental value of the premises as warranted and the fair rental value �as is� plus special and consequential damages [Cotton v. Stanley, 86 N.C. App. 534(1967); Miller v. C.W. Myers Trading Post, 85 N.C. App. 362 (1987)] However can�t recover more than paid landlord [Surratt v. Newton, 99 N.C. App. 396 (1990)]

9. How Prove Damages Fair rental value as warranted may be different from contract rate, but if no other evidence offered = contract rate Evidence required to prove fair rental value �as is� May be determined by proof of what it would rent for in the open market or by evidence of other facts from which fair rental value may be determined �From their own experience with living conditions, the [magistrate] could determine the �as is� fair rental value by considering evidence on condition� [Cotton v. Stanley]

10. Tenant�s Duties Keep premises clean and safe Dispose of all garbage in clean, safe manner Keep plumbing fixtures as clean as their condition permits Not deliberately or negligently destroy or damage premises or render smoke detector inoperable Be responsible for all damage inside unit except for ordinary wear and tear Notify landlord in writing of need for repairs to smoke detector

11. Tenant�s obligation to pay rent and to comply with duties under statute and landlord�s obligation to comply with duties are mutually dependent [GS 42-41] Tenant may not unilaterally withhold rent before a judicial determination of the right to do so [GS 42-44(c)]

12. Retaliatory Eviction G. S.42-37.1 to -37.3 Public policy of State to protect tenants who seek to exercise their rights to decent, safe and sanitary housing Prohibits landlord from evicting tenants because they exercise those activities Waiver by tenant or member of household of rights is void

13. Protected Activities Request for repairs to landlord Complaint to government agency about violation Government issuance of formal complaint to landlord Attempt to exercise rights under law or lease Attempt to organize or joint tenant�s rights organization Tenant�s actions must be good faith

14. Retaliatory Eviction Procedure Affirmative defense that tenant must raise at summary ejectment trial Must prove that eviction is substantially in response to the occurrence within 12 months of the filing of the eviction of one or more of the protected acts Tenant has burden of proving retaliatory eviction by the greater weight of evidence

15. Defenses to Retaliatory Evictions Breached covenant to pay rent Holds over after tenancy for years with no option to renew Violations caused by willful or negligent conduct of tenant Must displace tenant to comply with housing code Good faith notice to quit before conduct. Landlord seeks in good faith to recover at end of term for own abode demolish or make major alterations terminate use as dwelling for 6 months

16. Remedies for Retaliatory Eviction Deny request for ejectment Doesn�t prevent landlord from receiving money judgment for rent due Rights and remedies under this law are supplementary to all existing common law and statutory rights and remedies Unfair trade practice Action for damages if improperly evicted

17. Tenant�s Rights In Residential Property G.S. 42-25.6 to -25.9 No self-help eviction in residential leases Doesn�t apply to commercial property. May use self-help eviction if no breach of peace No holding tenant�s property for back rent and damages except as specifically provided in G.S. 42-25.9 Any contrary lease provision void

18. Remedies for Self-Help Eviction Tenant entitled to recover possession of premises Tenant entitled to terminate lease Landlord or agent liable for damages caused by removal or attempted removal Statute says no punitive or treble damages But remedies supplementary to all existing common law and statutory remedies Added claim for unfair trade practice with damages trebled

19. Remedies for Seizing or Holding Tenant�s Personal Property Tenant entitled to recover possession of property Tenant entitled to bring action for conversion of property Landlord liable to tenant for actual damages, but not punitive or treble damages But remedies supplementary So unfair trade practice claim possible

20. When Can Landlord Hold Property�Non Mobile Home Space After judgment and writ of possession executed by sheriff Wait 10 days and then throw away, dispose of, or sell property If total value of property is less than $100, wait 5 days and then throw away or dispose of property If tenant abandons property worth less than $500 or fails to remove it at time of execution of writ of possession, may deliver to charity regularly providing free or nominally priced clothing and household furnishings When abandoned

21. When Can Landlord Hold Property�Mobile Home Space If mobile home has value of $500 or less, dispose of mobile home and contents as provided for non-mobile home space If mobile home has value in excess of $500, dispose of it and contents by sale under GS 44A-2(e2) and -4 Wait 21 days after writ of possession carried out