Landlord Tenant Law- FAQs

As a firm that practices quite a bit of landlord tenant law, we get a lot of the same questions over and over. We would like to address some of these questions. The answers to these questions are applicable only under North Carolina law. Other state laws can and do vary. Our attorneys are licensed only in North Carolina. This post is intended to be informational only and is not intended to be a substitute for legal advice from an attorney specific to your individual situation. If you would like our experienced attorneys to review your case, and give specific advice, give us a call at 919-655-3984 and setup a consultation. You can also use the “Contact us” form on our website, www.LandNlawnc.com

Here are some common questions and answers:

Q: What should I do before entering a residential lease to protect my interests?

A: There are several things you can do to protect your interests. The first is to get a written lease. Not sign it. First, just get a copy. Next, take that written lease and contact a licensed attorney. Have the attorney review it for you and tell you the good, the bad, and the ugly. Why is this necessary? Because a good attorney can spot red flags which will save you a lot of time, money, and hassle down the road. Like a term that is in there that is actually illegal. Yes, we have seen it. No, it likely isn’t enforceable in court later. But why have to fight that battle down the road? If someone is putting that in the lease, they either don’t know the law, or they do and hope you don’t. Having an attorney review a lease (or any contract for that matter) on the front end will save you all the costs down the road of hiring us to fight for you in court and is far less than the cost of representation in court after a problem occurs.

Q: Is an agreement to pay rent that isn’t in writing still legal?

A: Usually yes, but it is difficult to do. If you are thinking of renting a space to someone or becoming a tenant, a written agreement will make sure everyone’s rights are protected and there are no misunderstandings. If an agreement happens and is not in writing, it is called an oral agreement. These can be valid in North Carolina for up to 3 years. Both parties have to know what it is they are agreeing to, actually agree, and there has to be performance on the contract. So, if landlord and tenant agree rent will be $500 a month paid on the 1st and the tenant moves in, you now have an oral contract. What happens if later though the tenant says rent was only supposed to be $300? Now you have a problem, and the Court is left to guess as to what actually happened. We strongly advise against oral agreements.

Q: Can a landlord change things like the amount of rent in the middle of a lease term?

A: Generally, no. Again, this is a good reason to have things in writing. With an oral lease, it often turns into a he-said she-said situation. With a written lease, there it is. What is in writing matters. That is what a court will consider.

Here is an example. Bob and Landlord sign a 1-year lease. Bob agrees to pay $1400 a month to Landlord. After 4 months, landlord comes to Bob and says it isn’t enough, and he has to raise his rent to $1600/month. Can landlord do that? The answer is no unless Bob both agrees and gets something in return. The “something in return” is called valuable consideration.

So, let’s say Landlord says he will raise the rent, but in return he will extend the lease another year, give Bob one month free, and allow Bob the use of a garage. Bob agrees. This is now a new agreement and will be legal. It should, however, be reduced to writing to protect both parties and may be required to be in writing to supersede the original contract (depending on the terms of the first one).

On the other hand, if Bob says no, there is nothing Landlord can do about it. He cannot evict Bob for not paying rent beyond what was agreed to in writing. A bad agreement by the landlord is likely to still be a legal contract. Landlord should have considered the rent he wanted prior to signing.

Q: My apartment has major issues including things like no hot water, heat not working, a/c not working, mold, water leaks, roof leaks, rodents, ect. The landlord refuses to fix it. What can I do?

A: This happens more often than you think. North Carolina law is very specific about what things the landlord absolutely must fix (most of which I just listed). Your lease may contain additional things the landlord is responsible for. But the bottom line is if it is something that is considered by law to be essential, the landlord must fix it. The first thing to do is to contact the landlord (in writing) and let them know about the issue. Request very plainly that you would like someone out as soon as possible to fix it. Give the landlord reasonable time to do that. What is a reasonable time? Well, that depends on the situation. If you have a minor drip from the roof, a week is probably reasonable. If your apartment is filling up with water, or it is extremely cold outside and the heat has stopped working entirely, then an immediate emergency call-out for someone who can fix it would be what is reasonable.

Q: I notified my landlord in writing of a major issue, but the landlord has still failed to fix it. Now what do I do?

A: If possible, you should immediately contact an attorney. In some situations, if notice has been given and the landlord is either unresponsive or refused to fix the issue, you would be able to go to find other accommodations and charge that to the landlord (or deduct it from your rent). In some situations, you may be able to break your lease entirely. This all depends on several factors. The best course of action is to seek immediate legal advice from a licensed attorney. If you can’t afford to hire an attorney, consider speaking with Legal Aid in your area.

Q: I reported an issue and my landlord refused to fix it. I told him I would not pay rent until it was fixed. He filed for eviction. Now what?

A: We have seen this a lot. This is called a retaliatory eviction and is something you can raise as a defense. In this situation, don’t go to court alone. Immediately contact an attorney as soon as possible.

Q: I am all done with my lease. I contacted my landlord for a move-out inspection. They refused and said they weren’t available. Now they are refusing to return my deposit. What do I do?

A: A landlord is not necessarily required to do a move-out inspection. Although it is best practice, they often do not. Instead, a lot of landlords will try to erroneously keep the deposit of tenants. State law requires a landlord to 1) Return your deposit within 30 days after vacating the property 2) Notify the tenant within 30 days that they are keeping a portion or all of your deposit with an itemized accounting of why. Or 3) within 30 days notify you that they intend to keep your deposit or a portion of it but will send an accounting within 30 days. This can extend the time by up to an additional 30 days if needed (60 days total).

If a landlord fails to do any of those things and simply keeps your deposit, after 30 days you can file in court and seek to have the court order it be returned. Usually this is a small claims court case and is fairly simple. However, having an experienced attorney in your corner can help expedite getting your deposit back. It is important to note that you as a tenant must provide a forwarding address for the landlord to return your deposit. Always do this in writing and keep a copy for your records. If you suspect the landlord may try to keep your deposit without good reason, send it to them certified mail, return receipt requested. That way, they cannot say they did not get that information.

Q: What can the landlord keep my deposit for?

A: Again, there are specific things spelled out in the law on this. If a tenant damages the property of the landlord, this is what the deposit is for. A good example would be large stains on the carpet, holes in the walls, damaged counters, ect. The important note is that it must be “beyond normal wear and tear.” That is a very broad term open to interpretation. Generally, landlords try to say most everything qualifies. The reality is this often isn’t true.

To protect yourself from these claims of damage, be sure to take lots of photos with a time and date stamp of the location you are renting before you move in. Then take additional photos when you move out. This will help prove what the conditions were and whether you or someone else caused the damage. If the landlord does a move-in inspection be sure to notate everything. Even if you don’t care and don’t expect the landlord to fix it, notate it anyway. Again, it is about keeping a paper trail to make sure you don’t end up on the hook for damage you didn’t cause.

Q: I have a maintenance issue, and my landlord says that I am responsible for fixing it. Is this true?

A: Generally speaking, no. If the issues involve things like a water leak, issues with heat or A/C, rodent issues, roof leaks, or other major issues, the landlord is responsible for fixing it. Even if they allege that you somehow caused the issues, they are required to fix it and then go after you for payment later. They may try to invoice you for it, or they may try to keep a portion or all of your deposit. If this happens, the best idea is to call an attorney to review what they are claiming and make sure it is actually legal. They would need to (at a minimum) be able to justify that you caused the issue. Now if you damaged the wall or stained the carpet beyond “normal wear and tear” you would be responsible for that.

Q: My landlord has refused to accept my rent. We have a lease agreement. Now they say they will evict me for non-payment. Is this legal?

A: No. A landlord cannot refuse to accept rent and then evict a tenant. To the contrary if a tenant does not pay rent, the landlord must make demand for payment. The time for the tenant to pay is either the time in the lease or 10 days if no time is specified. If the landlord refuses to accept payment, immediately mail a check or money order to the landlord by US Mail certified return receipt. Even if they don’t accept it, this will show the judge that you attempted to pay and support you saying they won’t accept it. You should also try to get the landlord to put in writing that they are refusing to accept payment and a reason why. If possible, immediately contact an attorney before an eviction is filed. The sooner you contact an attorney, the better we can protect your rights.

Q: Can a landlord come into my leased property without notice or my permission?

A: Generally, no. The one exception is if there is an emergency situation where there is not time to give adequate notice. For example, the landlord may enter if a pipe bursts, and they are aware that water is going into the apartment. To protect the property, they would not be required to give advanced notice. However, for routine maintenance or to inspect the property, reasonable notice would be required. What notice is required can also be consented to in the lease. If nothing specific is stated in the lease, generally 24 hours or more is considered standard. A landlord cannot just show up without any notice and demand to enter except during an emergency.

Q: Can a landlord prevent me from having a service animal in the home if they generally do not allow pets?

A: No. A service animal cannot be barred from a home as a “pet”. However, it is important to note the distinction between a service animal and an emotional support animal. If you get a certificate online or a doctor’s note saying fluffy the cat is there for emotional support, this is not a service animal by law. An animal that is trained to perform a specific function for someone with a disability is what is considered a service animal. The easiest example of this is a seeing eye dog, or a dog trained to assist someone with seizures. The Americans with Disabilities Act (ADA) has the specific definition and rules on what a service animal is.

Q: My landlord filed for eviction. Do I need an attorney?

A: Yes. Although the rules in small claims court do not require an attorney, it is essential to get an attorney to assist you. Often small claims court does not go well for the tenant. Magistrates overwhelmingly rule in favor of the landlords. An attorney can help even the playing field, gather evidence, and subpoena witnesses that can make the difference in winning or losing your case. We can also help advise you on the process for an appeal in case the outcome is not favorable. You will only have 10 days to appeal and will need to do that properly for it to matter. There is a specific process that must be followed.

This is not an exhaustive list of all the landlord tenant issues that come up. These are simply the most frequent questions we get asked. If you need assistance with a landlord-tenant issue, give us a call at 919-655-3984 and setup a consultation with our attorneys today. Let us fight to make sure your rights are protected!

About the author: Ed Nappi has been a North Carolina licensed attorney since 2020. Ed practices in both criminal law and civil law including landlord tenant and consumer protection. Ed practices in Harnett, Lee, Moore, Cumberland, and Wake Counties in central North Carolina. Ed has conducted trials in small claims, district, and superior courts both in private practice and as a former prosecutor.