Understanding the Motion to Stay Writ of Possession in North Carolina Evictions: A Comprehensive Guide for Landlords
By: Kevin Raus- North Carolina and South Carolina Licensed Associate Attorney with Brownlee Whitlow & Praet, PLLC
Residential housing disputes often involve complex legal procedures, and one such tool residents may use in North Carolina is the “Motion to Stay a Writ of Possession.” This legal tactic allows residents to temporarily halt an eviction process after a final judgment has been issued in favor of the housing provider. In this blog post, we aim to provide a clear explanation of this aspect of eviction proceedings in North Carolina.
Evictions in North Carolina
In any eviction in North Carolina, residents are served with an “eviction summons and complaint” by the sheriff. Unlike a ‘standard’ civil case, residents are not required to file an Answer with the Court responding to the allegations, before trial takes place. After the case is filed, a court date is assigned to the case. In cases where the residents do not appear at their assigned court date, a “default” judgment is entered against them, or a landlord can obtain a judgment for possession after a trial. After receiving a judgment for possession the housing provider must wait for a 10 day appeal period to expire and if no appeal is filed the housing provider may then file a “Writ of Possession.” The Writ of Possession instructs the sheriff to place the housing provider in possession of the property, with the physical eviction and removal of the resident from the property.
At this stage, residents can file a “Motion to Stay a Writ of Possession” to pause this process.
Motion to Stay the Writ of Possession- Defined
The “Motion to Stay a Writ of Possession” is a document filed with the court, by the resident or their attorney, in which the resident requests the court to “stay” or “stop” the sheriff from executing the Writ of Possession and removing the resident from the property. It may cite various reasons for the request, such as the resident claiming to have paid rent, alleging an unfair eviction, needing more time, or asserting some other defect in the case.
The Motion and the Eviction Process
Once a resident files a “Motion to Stay a Writ of Possession,” the court immediately forwards it to the judge, who places a hold on the case. The judge then reviews the motion and the resident’s reasons for requesting a stay. If the judge sees a legal basis for the eviction to be halted, they may grant the motion without a hearing or schedule an emergency hearing. However, if the judge believes the motion lacks merit, they can enter an order denying it without a hearing, allowing the eviction to proceed.
If the judge grants the resident’s motion, they will enter an order staying (or “pausing”) the eviction and set a hearing for the motion to be argued. At the hearing, both the resident and the housing provider, or the attorneys for either party, will have the opportunity to present arguments as to why or why not the motion should be granted. If the resident has failed to pay their rent bond, for instance, their chances of prevailing are reduced. Nevertheless, if the resident can prove that they paid rent, it was mis-posted by the housing provider, or if they placed a substantial sum of money into the rent bond, even if late, there’s a chance they can win the motion. In response, the housing provider’s attorney may file a “Motion to Lift the Stay of Writ of Possession.”
If the judge denies the “Motion to Stay the Writ of Possession,” the eviction proceeds without delay, as if no motion had been filed. If a hearing was scheduled, and the housing provider prevails, the judicial assistant or judge will notify the sheriff’s department to execute the Writ of Possession. In cases where the housing provider’s attorney has filed a “Motion to Lift the Stay of Writ of Possession,” and the case is decided in favor of the housing provider again, the same process applies.
Can Housing Providers Prevent Residents from Filing a Motion to Stay a Writ of Possession?
There is no way to prevent residents from filing a “Motion to Stay a Writ of Possession.” However, housing providers can take preventive measures by ensuring that their eviction procedures are airtight, reducing the likelihood of residents successfully using this tactic. By maintaining robust eviction practices and understanding the intricacies of the process, housing providers can navigate North Carolina’s eviction landscape with confidence. Our attorneys at BWP are here to help you every step of the way.
*The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information in this article is for general informational purposes only. Information in this article may not constitute the most up-to-date legal or other information. Viewers of this material should contact their attorney to obtain advice with respect to any particular legal matter. No viewer of this material should act or refrain from acting on the basis of information in this presentation without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this article does not create an attorney-client relationship between the reader and Brownlee Whitlow & Praet, PLLC or any contributing law firms. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.
