The Appeals Process for Evictions in North Carolina
Part 3: Rent Bonds
By Pat Finn
In Part 1 of this series, we discussed an overview of the appeals process, in Part 2 we took a closer look at the rules of evidence, and in this blog post, we’ll focus on the time in between the hearings in Small Claims and District Court and more specifically how “rent bonds” impact evictions.
When a Magistrate enters Judgment in Small Claims in favor of the housing provider, they are supposed to include the undisputed rent in arrears on the face of the Judgment (the rent only amount that is past due pro-rated through the day that Judgment is entered). This figure does not include late fees, utilities, or any other charges other than rent alone that is outstanding as of that day. They will also make a finding as to the monthly rental rate, so make sure to include testimony as to that rate in Small Claims.
When a resident appeals such a Judgment, they will be required to pay to the Clerk of Court the amount that the Magistrate found is past due. The Clerk then holds that money in trust. Some counties release that money immediately to the housing provider, while others wait until the conclusion of the legal case. If the resident files the appeal along with paperwork showing that they are indigent (meaning that they could not otherwise afford to appeal), they will not be required to post this back rent payment, however, they will still have to pay the future rent bond payments which include any prorated rent from the date of judgment through the remainder of the month in which the appeal is filed.
Each month the resident will be required to pay to the Clerk of Court the monthly rental rate that the Magistrate indicated on the Judgment. The due date for each month will be dependent upon that particular Clerk of Court’s policies and whether there are any weekends or holidays at the beginning of the month, but is typically due between the 8th and 10th of each month (the 5th business day of the month is the standard measure). None of these rent bond payments are made to the property, they all go through the Clerk of Court. If the rent bond payment is made by the deadline, then the law continues to “pause” the possession judgment during the appeal. In addition, if the rent bond payment is made to the Clerk, the housing provider should not assess any late fees on the resident account for that month. If a rent bond payment is not made by the deadline of any given month, then a Writ of Possession can be filed/issued, which will trigger the county Sheriff to come to the property and remove the occupants and change the locks. This removal is based solely upon the resident’s failure to pay the rent bond to remain in possession of the apartment home.
Notwithstanding the issuance of a Writ due to failure to pay the rent bond, The legal case remains unresolved and open, which means you will still need to appear for the District Court trial even if the resident has been removed. If the housing provider is not successful at the District Court trial, they could be liable for damages to the resident in putting them back in the home. Unless a resident is removed through a Writ, you will still be obligated to uphold your duties as a housing provider according to the law and lease, so make sure to stay on top of any work orders or other issues, even while an eviction is in the middle of an appeal.
