North Carolina General Statute 42-26 is the eviction statute: it sets out the three grounds a landlord can use to ask a court to remove a residential tenant through what the law calls “summary ejectment.” Those grounds are holding over after the lease ends, breaching a lease condition that triggers forfeiture, and abandoning the property while owing rent. Every residential eviction in the state has to run through this court process. A landlord who tries to force a tenant out any other way is acting outside the law.
Ground One: Holding Over After the Lease Ends
G.S. 42-26(a)(1) covers tenants who stay past the end of their lease term. If a written lease has a definite end date, the right to occupy ends on that date and no separate notice is required before the landlord files.
Periodic tenancies work differently. For month-to-month, week-to-week, and year-to-year arrangements, the landlord has to deliver a notice to quit under G.S. 42-14 first, and the clock on that notice has to fully run before a complaint can be filed:
- Year-to-year tenancy: at least one month before the end of the current year.
- Month-to-month tenancy: at least seven days before the end of the current month.
- Week-to-week tenancy: at least two days before the end of the current week.
- Manufactured home lot rentals: at least 60 days before the end of the current rental period, whatever the tenancy type.
Filing even a day early is a common and fatal mistake. Magistrates dismiss cases where the notice period had not fully expired by the filing date.
Ground Two: Breach of a Lease Condition
G.S. 42-26(a)(2) applies when the tenant has done, or failed to do, something that causes the lease to terminate under its own terms. The key words there are “its own terms.” For this ground to work, the lease itself has to contain a forfeiture or re-entry clause tied to the kind of violation the landlord is complaining about. Without that language, a magistrate has no authority to end the tenancy early over behavioral problems, however serious.
Typical triggers written into leases include unauthorized pets, unapproved subletting, property damage, and disturbances affecting other residents. The landlord has to prove both that the violation happened and that the lease language supports termination for that particular act. Photos, written complaints, inspection reports, and correspondence with the tenant all help carry that burden.
One trap in breach cases is partial payment. G.S. 42-26(c) permits a lease to say that accepting partial rent or a partial housing subsidy payment does not waive the tenant’s breach. If the lease contains that clause, the landlord can accept whatever the tenant offers and still pursue eviction for the underlying violation. If it does not, taking partial payment can be read as a decision to continue the tenancy, which can sink the case.
Nonpayment of Rent Runs Through This Ground
Nonpayment cases are the most common evictions in North Carolina, but G.S. 42-26 is not where the forfeiture itself comes from. G.S. 42-3 creates an implied forfeiture of every lease in the state, written or verbal, when a tenant fails to pay rent within 10 days after the landlord demands the past-due balance. Once that window closes with the rent still unpaid, the lease has “ceased” and the landlord files under 42-26(a)(2).
The 10-day demand is a hard prerequisite. The landlord must make a clear demand for all past-due rent, and 10 full days have to pass before the complaint goes in. If the tenant pays everything owed inside that window, the forfeiture is cured and the eviction cannot proceed on nonpayment grounds.
Tenants have a second chance even after filing. G.S. 42-33 lets a tenant stop a nonpayment case by paying all rent owed plus court costs at any point before the magistrate enters judgment. That cure right survives all the way to the courtroom.
Ground Three: Abandonment While Owing Rent
G.S. 42-26(a)(3) is narrower than people assume. It is not about ordinary nonpayment. It applies when a tenant who owes rent actually deserts the property and leaves it unoccupied. The statute also reaches agricultural tenants who agreed to pay rent as a share of the crop, or who gave the landlord a lien on the crop, and then abandoned the land. Both pieces have to be present: money owed and the tenant gone.
What 42-26 Does Not Reach
G.S. 42-26(b) bars landlords from using unpaid water, sewer, or electric charges as a basis for terminating a lease, even when the landlord bills the tenant separately for those services. Any money the tenant pays goes to rent first, then to utilities, unless the tenant directs otherwise. A landlord cannot route a partial payment entirely to utilities and then claim the rent is unpaid.
The statute is also the only path. Under G.S. 42-25.6, a residential tenant can be removed only through summary ejectment or through the expedited criminal-activity proceedings in Article 7. A landlord who changes the locks, cuts off utilities, removes doors, or physically bars the tenant has violated state public policy, and the tenant can pursue remedies for wrongful eviction.
How the Court Case Moves
The complaint is filed with the Clerk of Superior Court in the county where the property sits, using the Complaint in Summary Ejectment form (AOC-CVM-201). It identifies the tenants, calculates rent owed through the filing date, and names the specific statutory ground. Any late fees included must comply with G.S. 42-46, which caps residential late fees at $15 or 5% of the monthly rent, whichever is greater, and only where payment is at least five days late.
Once filed, the clerk issues a summons requiring the tenant to appear within seven days, excluding weekends and legal holidays. The sheriff serves under G.S. 42-29 by mailing a copy, attempting at least one visit in person within five days of issuance, and handing the papers to the tenant or to another suitable person at the address. Posting the documents on the door is the fallback when direct and substitute service both fail, not the ordinary method.
At the hearing, the landlord carries the burden of proof by a preponderance of the evidence. The tenant does not have to file a written answer; under G.S. 7A-218, silence counts as a general denial, so the landlord still has to prove the case even if the tenant says nothing. In nonpayment cases where the tenant does not appear or respond, the landlord may obtain judgment on the pleadings under G.S. 42-30 without live testimony, as long as the complaint alleges a breach for which re-entry is allowed. The magistrate can grant possession, dismiss, or accept the tenant’s full payment plus costs as a cure under G.S. 42-33.
Appeals and the Writ of Possession
Either side has 10 days to appeal to district court, and court costs must be paid in that same window or the appeal is dismissed automatically. The appeal is a complete new trial, not a review of the magistrate’s reasoning.
A tenant who appeals can stay the eviction only by meeting G.S. 42-34’s bond requirements: pay any rent in arrears found by the magistrate into the clerk’s office and sign an undertaking to keep paying rent as it comes due. Tenants who qualify as indigent under G.S. 1-110 can stay the eviction without paying the back rent but still have to keep current payments flowing. Missing a payment by more than five business days lets the landlord ask the clerk for immediate execution.
If no appeal is filed or the appeal fails, the clerk issues a writ of possession. Under G.S. 42-36.2, the sheriff has to execute the writ within five days of receiving it and must notify the tenant of the approximate removal time beforehand. Belongings left behind can be delivered to a storage warehouse, with the landlord sometimes required to advance delivery costs and one month of storage before the removal goes forward.
Defenses a Tenant Can Raise
Retaliatory eviction is an affirmative defense under G.S. 42-37.1. If a tenant engaged in a protected activity within 12 months before the filing, the tenant can argue the eviction was substantially motivated by retaliation. Protected activities include:
- Asking the landlord to make repairs the landlord is obligated to perform under G.S. 42-42.
- Reporting health or safety violations to a government agency.
- Attempting to enforce rights under the lease or under state or federal law.
- Joining or participating in a tenants’ rights organization.
The defense is not automatic. A landlord can defeat it by showing the eviction rests on a legitimate breach such as unpaid rent, that the tenant caused the code violation at issue, or that the landlord’s notice to quit went out before the protected activity.
Two federal protections can also come into play. The Servicemembers Civil Relief Act requires courts to verify military status before entering a default eviction judgment, and if an active-duty servicemember’s ability to pay rent has been materially affected by military service, the court can stay the eviction for at least 90 days. That protection applies to rentals under the SCRA rent threshold (originally $2,400 in 2003 and adjusted annually for inflation). Separately, properties with federally backed mortgages or federal housing subsidies carry a permanent 30-day notice-to-vacate requirement that originated in the CARES Act, which the landlord has to deliver before starting eviction proceedings.