Landlord Lawyer By Will Brownlee, Brownlee Law Firm, PLLC A “Two-Fer” of Landlord Myths
As many readers of this column know, “landlord myths” are items of information that many prop- erty managers, and even some attorneys, gener- ally assume to be true, though they are actually falsehoods. As with one of my favorite television shows, MythBusters, I enjoy learning of certain myths and then taking time to explore them and to examine them as to their truth or falsity.
It’s been awhile since our last “mythbusting,” so let’s “bust” a couple more, shall we? Both myths relate to evictions – whether submitted electronically or regarding criminal activity. Here we go:
MYTH: IT IS POSSIBLE TO FILE SMALL CLAIMS SUMMARY EJECTMENT (EVICTION) CASES ELECTRONICALLY WITH THE COURTS.
This is absolutely a myth. I was very surprised during a recent seminar when I shared this piece of knowledge as if everyone knew it, but then I noticed a number of faces staring back at me with eyes like saucers – as if I just told them two plus two equals twelve. It was as if their entire concept of evictions and how they were filed was turned upside down. To quote what one person later confided: “I thought I clicked a button; it was sent to an attorney; they reviewed it and clicked another button; and then it showed up in the court computer system.” Boom. Another landlord myth is born.
On one level, you can excuse landlords for buy- ing into this myth. After all, this is the Twenty- First Century, the glorious age in which almost anything can be done via the internet: shopping, banking, paying bills, ordering groceries for home-delivery, and even finding a mate. Heck, many landlords now accept rental applica- tions online, screen and approve them online, and even have the residents sign their leases electronically, sometimes before the resident has ever visited the community to see the apartment – essentially, renting sight unseen. In this Brave New World, you would think that the filing of a lawsuit could be done the same way, right?
Worse, a little truth always helps sell the lie of a myth. In certain courts, this concept is not a myth at all; electronic filing of pleadings is available in
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federal courts, North Carolina’s appellate courts (the N.C. Court of Appeals and the N.C. Supreme Court), and in certain complex Superior Court cases assigned to N.C.’s Business Court. Also, the N.C. Administrative Office of the Courts has a pilot program for electronic filing in Chowan, Davidson, and Wake Counties – but only for Superior Court cases and foreclosure cases. Small claims courts are not part of the picture.
YOU CAN’T FILE EVICTIONS WITHOUT KILLING A FEW TREES
When one reads the applicable N.C. statutes and considers how evictions are processed and filed, it is clear that small claims cases must be filed and handled entirely on paper. At least three reasons ensure this:
1. Filings must be made in the office of the Clerk of Superior Court. N.C. GEN. STAT. § 7A-213 requires that the landlord/plaintiff file their complaint “in the office of the clerk of superior court of the county wherein the defendant, or one of the defendants resides . . .”(emphasis added). Exactly what does this mean? It means that every eviction case, whether handled by you personally or through an attorney, must be printed, signed by hand, and delivered to the Clerk of Court’s office for filing, along with the filing fee.
2. Court filing fees cannot be paid electroni- cally for a small claims case. The electronic filing of eviction cases will likely never be possible without a significant change in payment policy. Clerks of Court accept only cash or money order as the payment of civil filing fees, though many Clerks accept certain business checks and checks made from attorney trust accounts. However, credit cards or online payments are not among the methods accepted to file a civil case in small claims.
3. At present, relevant statutes regulating how evictions are processed and served guarantee that evictions will never be filed electronically. N.C. GEN. STAT. § 42-29 requires that the plain- tiff in any summary ejectment suit must provide the Sheriff with a stamped envelope addressed to the defendant/tenant for each eviction case
(or in some counties that require it, for each defendant). This means that someone must deliver a stamped, addressed envelope to the courthouse, or else the eviction is not processed and served.
Perhaps the primary source of the myth is the existence of online eviction submission services, which permit landlords to submit eviction filing requests to their attorney for filing. The instan- taneous nature of the internet sometimes lulls clients into the illusion that the filing of an evic- tion lawsuit is a simple click-and-file proposition. Like the Wizard of Oz pulling levers behind the curtain, the reality is: the attorney receiving the information has to review it, transfer the relevant information to a Complaint in Summary Eject- ment form and Magistrate Summons form, sign it, write a check for payment of the $96.00-per- case court filing fee and the $30.00-per defen- dant Sheriff fee, and then have it delivered to the Clerk of Court for filing. This naturally takes time, and, based on a variety of factors, it may be a day, or two, or more before the case is actually filed.
WHEN TELLING YOUR RESIDENTS YOU ARE FILING, AVOID OVERREACHING
Given this reality, take care not to misrepresent to the residents when you actually filed a case at the courthouse. For example, I’ve seen many community managers write notices which say, “We have filed an eviction against you.” In real- ity, they sent the case to their attorney for filing – and since there is no electronic filing with the courts, the actual filing may be a day, or two, or more later.
This disparity is not lost on the defendant/ residents, who often have a fair degree of common sense. They can look at the Clerk of Court’s time-stamped date on the face of the complaint, then look at your letter saying when you “filed,” and then cry foul, especially if they visited the office to pay rent between the time of the illusory “filing” on the written notice and the date of the Clerk’s actual timestamp. This is the sort of complaint I routinely hear from tenants in eviction cases, and some magistrates are offended enough to dismiss cases for the
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