Can a North Carolina landlord and tenant agree in a lease that any eviction case will be heard by a magistrate in a different county from where the rental property sits?

Plain-English summary

A chief district court judge asked whether a magistrate could hear a residential summary ejectment case concerning property in another county when the landlord and tenant had agreed to that in the lease. The AG answered no. It described summary ejectment as a small claim and said G.S. 7A-211 allowed assignment to a magistrate only when the defendant was a resident of the county in which that magistrate resided. A residential tenant normally lives in the rental property, so the opinion treated the tenant as a resident of that property’s county.

The AG also said the General Assembly, not lease parties, defines magistrate authority. Parties cannot expand the authority of a magistrate outside the proper county or keep a properly empowered magistrate from exercising statutory authority. The opinion quotes Gaither v. Charlotte Motor Car Co. on the problem with allowing a contract to choose courts contrary to the legislature’s will.

This answer addresses a magistrate hearing a case involving residential property in another county. It does not decide whether a separate lease clause choosing district court would be valid, whether a case must always begin before a magistrate, or what happens on appeal.

Currency note

This opinion interprets North Carolina law as it stood in 1990. Check current small-claims assignment and venue rules for a present eviction dispute.

Background and statutory framework

The opinion identifies G.S. 7A-210(2) as classifying summary ejectment as a small claim and G.S. 7A-211 as governing a chief district court judge’s assignment of a small claim to a magistrate. It also cites the state constitution for the General Assembly’s authority to prescribe magistrates’ and district court judges’ jurisdiction and powers. The contract term in the question could not alter those statutory limits.

Common questions

Can a lease authorize a magistrate in another county to hear this residential eviction?

The AG said no on the facts posed. It said a lease cannot expand a magistrate’s authority beyond the statute.

Did the AG say every residential tenant lives in the rental property?

No. It said a tenant “normally” lives there. A different residence pattern was not analyzed in this opinion.

Did the opinion decide whether landlord and tenant may choose district court instead?

No. It discusses a magistrate in another county and the parties’ inability to change magistrate authority by contract. It gives no ruling on that separate clause.

Citations

• N.C.G.S. § 7A-210(2) (summary ejectment in small claims)
• N.C.G.S. § 7A-211 (Chief District Court Judge's assignment authority)
• N.C. Constitution, Article IV, § 12(4)
• Gaither v. Charlotte Motor Car Co., 182 N.C. 498, 109 S.E. 362 (1921)
• Roberts v. Lexington Ins. Co., 305 F.Supp. 47 (E.D.N.C. 1969)

Source

• Landing page: https://ncdoj.gov/opinions/authority-of-civil-magistrates-to-hear-summary-ejectment-cases-from-another-county/

Original opinion text

Requested By: The Honorable James E. Lanning, Chief District Court Judge, 26th Judicial District

Question: Does a magistrate have the authority to hear a summary ejectment action involving residential rental property in another county if the landlord and the tenant so provide in the lease?

Conclusion: No.

A summary ejectment action is by definition a Small Claim action. G.S. 7A-210(2). The General Assembly has authorized a Chief District Court Judge to assign a small claim action to any magistrate in his or her district, if the defendant is a resident of the county in which the magistrate resides, G.S. 7A-211. Normally, a residential tenant lives in the rental property and is therefore a resident of the county where the property is located. A civil magistrate thus has no authority to hear such a case under G.S. 7A-211 if the property lies in another county.

Authority to prescribe the jurisdiction and powers of magistrates and district court judges is vested in the General Assembly. Constitution of North Carolina, Art. IV, § 12(4). Parties to a residential rental contract do not have the contractual power to expand a magistrate's statutory authority to hear cases arising outside the county, nor do they have the contractual power to keep a properly empowered magistrate from the county where the property is located from exercising statutory authority to hear a summary ejectment case. The North Carolina Supreme Court has stated that such contractual provisions, if enforced, would improperly empower a party, "contrary to the will of the Legislature, to choose the courts in which its case should be tried, and thereby deprive of jurisdiction one of the courts authorized to hear the cause." Gaither v. Charlotte Motor Car Co., 182 N.C. 498, 501, 109 S.E. 362, 364 (1921), accord Roberts v. Lexington Ins. Co., 305 F.Supp. 47 (E.D.N.C. 1969).

Thus, the General Assembly has established the limits of a magistrate's authority, and the parties have no right to expand or reduce that authority.

Lacy H. Thornburg, Attorney General
David N. Kirman, Assistant Attorney General