Eviction court: Where tenants, landlords, and the law converge

A little before 10 one hot morning last summer, a few men with clipboards made their way around the crowded lobby at the nonprofit Crisis Assistance Ministry. Men, women and children awaited a turn to tell their stories to agency counselors who – they hoped – could give them enough money to keep the power on or avert eviction for not paying the rent.

A few minutes later, in a conference room, two of the clipboard men stood in front of 11 people from the lobby who wanted to learn about eviction and the court system. Armed with flip charts and handouts, Keith Dennis and George Ladner began. Dennis, white-bearded and bespectacled, took the lead. He emphasized, “We cannot promise that you’re going to win.”

Dennis and Ladner volunteer with the Homeless Prevention Project, a partnership between nonprofits Crisis Assistance Ministry and the Charlotte office of Legal Aid of North Carolina. The project aims to help as many people as possible stay in their homes. With approximately 30,000 eviction notices filed each year in Mecklenburg County, avoiding unnecessary eviction could mean hundreds of low-income households not facing potential homelessness.

Why does any of this matter? Evictions can have cascading financial effects on households. Families already struggling to pay rent can face late fees, eviction court costs, new apartment fees, utility deposits and moving costs, as well as loss of pay – or even a job – for missing work to find and move to a new home. Children’s lives lack stability when they must change schools or spend time in shelters. Tenants with an eviction complaint on their record, even if they avert eviction, can be blacklisted from finding another landlord willing to rent to them.

The best-selling 2016 book by sociologist Matthew Desmond, Evicted: Poverty and Profit in the American City, brought new attention to evictions. Desmond’s lecture in Charlotte last September, sponsored by the UNC Charlotte Urban Institute and six other community partners, sold out. At the same time, the interwoven problems of poverty and instability have drawn major attention in Charlotte after news in 2013 that the city ranked 50th of 50 large city regions in a Harvard University/UC Berkeley study examining upward economic mobility among children in low-income families. Charlotte’s nonprofit, government and business leaders convened a wide-ranging initiative that studied the problem and recommended action.

The UNC Charlotte Urban Institute, with funding from Mecklenburg County Community Support Services, has issued three reports looking at different facets of eviction. The most recent – Charlotte-Mecklenburg Evictions Part 3: One-month snapshot of eviction court records – was released May 23. Researchers for the first time analyzed local eviction data from Mecklenburg County court records, combing through a one-month snapshot of court eviction papers from July 2016.

Despite eviction’s sometimes devastating effects, unless you’re a lawyer or a landlord you may not know much about the legal process or what rights tenants have – and don’t – in an eviction. Unlike criminal defendants, defendants in civil courts don’t have the right to an attorney, and only a tiny fraction have a lawyer in court – unlike most landlords seeking to evict. The Homeless Prevention Project aims to chip away at that imbalance. It’s the brainchild of Crisis Assistance Ministry CEO Carol Hardison and Ted Fillette, long-time senior managing official (now retired) with the Charlotte office of Legal Aid of North Carolina.

Of the 30,000-some Mecklenburg eviction cases typically filed annually in recent years, Fillette estimates Legal Aid will represent about 350 to 400 – a little more than 1 percent – “and we will win 95 percent of those cases,” he says. With just three lawyers in its housing unit, Legal Aid can’t possibly take all the cases that seem to have merit that come to their attention. So the idea is for the Homeless Prevention Project to arm tenants with enough information that, if facing eviction, they’ll understand the court process and the law and can raise any valid issues that might help them stay in their home.

The crowded lobby at Crisis Assistance Ministry one August morning in 2017. The faces in the photo are blurred to avoid publicly identifying the agency’s clients. Photo: Nancy Pierce

‘YOUR NO. 1 PIECE OF EVIDENCE’

In the conference room at Crisis Assistance Ministry, Keith Dennis and George Ladner offer plenty of information to tenants, only a few of whom say they face imminent eviction. Instructions: Save receipts. Take photos, and print them out. Get a printed copy of your lease. “Leases are generally your No. 1 piece of evidence,” Dennis says.

The audience is incredulous that paper printouts of photos are needed, that text messages or photos on a phone aren’t good enough. “Evidence is paper. Or people,” Ladner repeats.

He and Dennis give tips for going to court: Practice what you’ll say. Show up on time. Bring all your evidence.

One woman who had previously been evicted describes how she lived for 90 days without a working toilet. “I wouldn’t pay rent,” she says. “He said, ‘If you’d paid rent I’d fix it.’ ”

Ladner explains that the landlord is required to repair serious problems, but in North Carolina the law doesn’t let tenants withhold rent until repairs are made. Another suggestion: Keep track of complaints you make to housing code inspectors. Thanks to state law dating to the late 1970s, a landlord can’t legally evict a tenant in retaliation for the tenant complaining to inspectors. Ask for a copy of the inspector’s report to take to court for evidence. “That might turn into a big defense,” Dennis says. “Retaliatory evictions are illegal.”

Ladner and Dennis describe the process for filing an appeal if a tenant is evicted. The appeal to District Court costs $150. The fee can be waived if you’re indigent and fill out the right form. But there’s a caution about that form: “This one they’re not going to offer you,” Dennis says. “You’ve got to know to ask for it.”

Keith Dennis, a volunteer with the Homeless Prevention Project, explains how tenants can appeal an eviction. Photo: Nancy Pierce

‘IT WAS A RULE OF TERROR’

Until the 1970s, tenants in North Carolina had almost no rights. Many landlords wouldn’t even bother to go to court. Instead, in what are called “self-help evictions,” they would lock tenants out, cut off utilities or take their property.

“It was a rule of terror,” Fillette recalls. Many Charlotte tenants had week-to-week, oral leases and could be evicted legally with a two-day notice. “The quality of justice,” Fillette says, “was primitive at best. Punitive and terrifying most of the time.”

But a series of court cases in the ’70s began changing things. One of the most powerful curbs on landlord abuses throughout the state started at a small brick house on Cosby Place in east Charlotte’s Merry Oaks neighborhood.

As the court documents tell it, in December 1974 Ada and Jeffrey Love rented it and moved in. Two weeks later they had a spat, and he left, taking his things and telling the landlord’s agent they were moving out. Three days later the couple came back for her things. Their possessions were gone, including, Fillette recalls, irreplaceable baby photos. Although the landlord, Robert Pressley, had not gone to court for an eviction, his workers had cleaned out Ada Love’s things.

The Loves, with Fillette as one of their lawyers, sued and won. But what changed landlord-tenant dealings in the state was that Mecklenburg District Court Judge Fred Hicks ruled the landlord’s actions were unfair or deceptive acts that violated the state’s unfair trade practices law. Hicks awarded treble damages. In 1977 the state Court of Appeals upheld that ruling.

“All the landlords in the state could read what happens to self-help evictions,” Fillette recalls. “Treble damages.”

Today, even though later laws gave tenants more rights – such as the bar on retaliatory evictions – that doesn’t mean tenants know those rights or that they get fair treatment in court.

EVICTION MEANS SMALL CLAIMS COURT AND MAGISTRATES

Spend some time in eviction court and you glimpse the complications and complexities – and the degree to which random chance can change lives. It’s small claims court, and magistrates preside. Although many magistrates have law degrees, they aren’t required to.

The court process for eviction is complicated, and tenants often aren’t familiar with it. An undetermined number of tenants move out before any eviction filings take place in court, in so-called “informal evictions.” Maybe the landlord offers them money to just leave, or maybe they see eviction looming and move out to keep an eviction off their record.

Landlord-tenant and housing laws are so complicated the Apartment Association of North Carolina offers members a thick handbook on the subject. Photo: Mary Newsom

If the case goes to court, a landlord must first file a Complaint in Summary Ejectment, stating the reason for eviction. Court records show 28,471 of those eviction complaints were filed in Mecklenburg County during the 2015-16 fiscal year (July 1, 2015-June 30, 2016). In July 2016 alone, the institute’s latest eviction research found, 1,940 eviction cases were filed in Mecklenburg County.

Tenants can be ejected for not paying rent, breaking terms of the lease, or criminal activity. If a lease has ended and the tenant is staying on a month-to-month or week-to-week basis, the landlord can, with proper notice, evict for pretty much any reason, including selling the property – increasingly common in booming Charlotte as developers buy smaller, older rental properties and demolish them to build new, more expensive housing.

After the complaint is filed, a small claims court date is set for several days later. Landlords tend to have lawyers in eviction court and tenants mostly don’t. The institute’s study of July 2016 Mecklenburg County court records found the landlord had legal representation in 82 percent of the complaints. A series of studies in multiple jurisdictions over the past 20 years shows the percentage of tenants with lawyers ranged from 20 percent to zero. Does that matter? It appears to. A Harvard Law Review study published in 2013 found that two-thirds of tenants with a legal aid attorney were able to stay in their homes.

Some cities are trying to remedy that disparity. Last year, New York – after a class action suit dating to the 1980s – said it would guarantee that all families facing eviction get the right to legal counsel in housing court. But the program isn’t required to go into full effect until 2022.

According to a 2017 report from the Pew Charitable Trusts, last year Washington, D.C., set aside $4.5 million to pay legal fees for families facing eviction, and Philadelphia approved spending $500,000 so low-income renters being evicted could get lawyers.

Tenants often don’t even come to court. On two days of eviction court I observed last summer, slightly more than half the people listed on the docket did not answer when their names were called. If the plaintiff (landlord) isn’t there, the case is dismissed. If tenants aren’t there or don’t hear when the magistrate calls their names, the magistrate almost always enters an eviction judgment against them.

“The first time many people learn a judgment has been entered against them is when they get a note from the sheriff,” says Fillette.

The institute’s research found that of the July 2016 cases, in 84 percent of the cases where a magistrate entered a judgment to evict, the tenants did not appear in court.

If a magistrate orders that the tenant can be evicted – which happened in 61 percent of the 28,471 Mecklenburg cases in fiscal year 2015-16 – the tenant has 10 days to appeal or to move out. Unless there’s an appeal, the landlord who has won the eviction files a “writ of possession.” Then the Mecklenburg County Sheriff’s Office is notified to go with the landlord to padlock the home, which usually means the landlord or a maintenance worker changes the locks. Sometimes tenants pay their rent, and the padlocking is called off. Sometimes they’re gone by the time the sheriff’s deputy arrives.

In the UNC Charlotte eviction study released May 23, researchers combed through a one-month snapshot of court eviction papers from summary ejectment case files with a court date of July 2016. Among the findings:

• Of the 1,940 eviction cases filed in Mecklenburg County that month, 61 percent received a judgment to evict.
• Among those cases with a judgment to evict, in 47 percent (558 cases) a writ of possession for the tenant to be removed was issued. Of those 558, in 196 cases (33 percent) the writs weren’t executed because the tenants paid the landlord or just moved.
• Most eviction attempts were due to not paying rent. The median amount of rent unpaid or past due was $850.

In North Carolina, tenants have some defenses that can sometimes avert an eviction, such as a claim of retaliatory eviction. Or a tenant can raise a defense related to domestic violence. Sometimes landlords want to evict a domestic violence victim due to multiple police calls or property damage from an abuser. If there’s evidence domestic violence is playing a role in the landlord’s wish to evict, that defense could trump other reasons the landlord might give, and the magistrate can refuse the eviction.

Evictions disrupt household stability. One family, evicted from their Charlotte apartment in August 2017, was staying with relatives but had to carry most of their belongings around in the family van. Photo: Nancy Pierce

‘I DON’T KNOW WHAT THEIR LEASES SAY’

It’s mid-July in eviction court. The tenant, a burly middle-aged man, tells the magistrate his side of the situation. “They said they were selling the house. They said don’t pay the rent, just leave.” He says he’s been in the house four years, has four kids. He found another place but can’t move in until Aug. 23. The rental agent told him he could stay until Aug. 25, he says. But now that agent has filed to evict him. “All I need is 30 days to get out,” the tenant tells the magistrate.

The magistrate asks to see the lease. The property manager says he doesn’t have it.

After more back and forth, the magistrate announces she is giving the landlord possession of the property – an eviction.

In the next case, with the same rental agent, the story is similar. The tenants say they were told the owner wanted to sell. The tenant in court says her son, a postal worker, tried to pay the rent but the agent wouldn’t accept it. “He is not in arrears,” she tells the magistrate. Now the landlord has filed to evict by the end of July. Again, the magistrate OKs that eviction.

In the following case, with the same property manager, the tenant says she was told she could stay until Aug. 25. “He said he was going to work with me. The owner is selling the home.” At this point the magistrate has noticed the pattern. She chastises the agent: “Don’t just tell people you’re not going to take their money, and then file on them.”

The courtroom audience chuckles at the reprimand. The tenant insists she can pay the rent owed. There is back and forth about repairs not made. The magistrate asks to see photos of water damage from a leak. Then she lectures the agent again: “Get out there and get that repaired, sooner rather than later.”

As the magistrate lectures the agent, someone in the audience says, audibly, “He should get another job!”

Nevertheless, the magistrate grants the eviction before scolding the agent again: “There’s a proper way to terminate a lease. I don’t know what their leases say.”

Her remark is key. Fillette, who has been watching, says that without a lease in evidence, the evictions should not have been ordered.

Another day, a month later, in another courtroom, another magistrate deals with a landlord who isn’t sure if he has a written lease with his tenant. The magistrate tells him: “If you have a written lease you have to have it in here with you if you’re evicting someone.” Without that evidence, she says, she can’t order an eviction.

The man with four children – who was evicted in the July court appearance by the other magistrate – appears to have been the victim of bad luck. If his case had gone before the other magistrate, with no lease for evidence, he might well not have been evicted.

Volunteers George Ladner, left in pink shirt, and Keith Dennis, in red shirt, offer information and tips about the eviction process to a group at Crisis Assistance Ministry. All the participants shown here gave permission to be photographed. Photo: Nancy Pierce

It’s that kind of information the Homeless Prevention Project hopes to give tenants who find themselves in court. The first class of trained volunteers was in 2014. Since then, the project has trained about 40 volunteers with about a dozen consistently rotating through what’s typically a four-day-a-week schedule at Crisis Assistance Ministry, says the project manager, Hannah Guerrier of Legal Aid of North Carolina.

Because of confidentiality rules at Crisis Assistance Ministry, the project has a hard time tracking outcomes. But, says Guerrier, “We started to see an uptick in the amount of time small claims court was taking. There were more people showing up to challenge their cases. I can’t directly link that, but I would like to think this would have an impact in people showing up and trying to plead their case.”

THE REST OF THE STORY

After his July court appearance, by mid-September the man with four children had vacated his modest house in a 10-year-old subdivision in northwest Charlotte. The house sat empty, grass needing mowing. No for-sale sign was up.

The postal worker from the second case and his mother had worked it out with the landlord after court and had signed a new lease for higher rent – from $995 to $1,250 – for their house in another 10-year-old subdivision in northwest Charlotte.

In the third case, involving a yet another house in a similar 10-year-old northwest Charlotte subdivision, the tenants had worked it out with the landlord and not been forced to leave. But they bought a house and in September were moving out.

The small brick house on Cosby Place – at issue in that landmark 1977 tenants’ rights case – was sold in 1993 to the Charlotte-Mecklenburg Housing Partnership, a nonprofit affordable housing agency, which sold it a year later to a resident who, public records show, still owns the house and lives there.