Can a Landlord in Fayetteville Evict if Rent is Late One Day

Can a landlord in Fayetteville evict if rent is late one day?  This is a question we received  the other day from a landlord in Fayetteville, North Carolina, who is not represented by a property management company, and is not one of our Fayetteville property management clients.  His concern was whether he could start the eviction process on a tenant in Fayetteville, who had been a problemed tenant, where the tenant was one day late in paying his rent.  

Specifically, the landlord had a long history with the tenant failing to pay rent on time, and wanted to evict the tenant if the tenant was late on their rent in the next couple of days. 

The law in North Carolina provides the Fayetteville landlord  with guidance on how, and when the landlord may evict a tenant for failing to pay rent on time.  Additionally, the North Carolina lease  agreement should have the written provisions which dictate, how, when, and where the tenant should make rent payments. 

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The Law Concerning One Day Late Rent Payments and Evictions

Like any other agreement, all landlords have the right to enforce the terms of tenancy, and one of those terms is that the rent is to be paid on time. In the case of a tenant who pays their rent one day late, the landlord would have the legal authority, absent contrary terms in the lease agreement, to begin the eviction process on a tenant who is one day late with rent.

The point of confusion with a lot of property management companies in Fayetteville, as well as most landlords, is that the landlord must wait until the rent grace period is over before evicting a tenant.

This reading of the law is simply not true.  What the North Carolina Landlord and Tenant Laws provide is that the landlord cannot begin charging late fees until 5 days after the due date of the rent.  What this means is that a tenant who is one day late in their rent, can still be subjected to the eviction process. In other words, on the second day of the month, you can provide your tenant with a notice to quit, as well as a 10 day demand for rent, and file a complaint for summary ejectment on the 15.

Under North Carolina law, the 10 Day Demand for Rent contained in the notice to quit, is a mandatory requirement to evict a tenant who is one day late with their rent payment.  What this notice does is, it gives the tenant a maximum of 10 days to either pay the rent or vacate the residence.  In the event the tenant fails to pay in the 10 days, the landlord can then file an eviction action in magistrate court.

If the landlord wishes a more expedited process, the landlord could identify a provision in the lease that the tenant violated. Unlike the formal notice required for non-payment of rent, a landlord, in accordance with North Carolina Rental Laws, is not required to provide notice for a violation of the lease agreement. You can simple file for a summary ejectment right away.

If the basis for your evicting your tenant is that the tenant was one day late in their rent payment, we would caution you against this course of action.  It will more likely be clear that you are using a lease violation as a pretext for removing the tenant under another provision of the lease.  This would likely result in your case being dismissed, and possibly penalties by the court.  Unless you can provide firm documentation that the tenant was in breach of his lease, it is best you follow the proper notice requirements for an eviction in North Carolina. This way you can avoid falling victim to tenant defenses to eviction notices in North Carolina.

Another important thing to remember is that YOU CANNOT USE THE SECURITY DEPOSIT TO COVER THE RENT. In North Carolina, a security deposit cannot be used as payment for the previous month’s rent. The caveat to this is if the lease agreement specifically states that the landlord can use the security deposit for the previous month’s rent.  Absent such language, it is illegal for you to make a partial, or full, payment with the security deposit. 

Just Because You Can Evict a Tenant Who is One Day Late With Rent, Should You?

All in all, remember that your goal is to remove a tenant from your property if you believe the tenant has consistently been a problem, and you see the tenant as continuing along this path, and unable to cure the deficiencies.  Ultimately, this will allow you to have peace of mind, as well as ensure that you rental investment property is protected. 

At Linchpin Property Management, we are the only property management company in Fayetteville, North Carolina led by a military attorney, who will ensure your legal rights as a property owner are protected.  No other property management company in Fayetteville can provide this service. 

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The Team at Linchpin Property Management.