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 summary ejectment action involving residential rental property in another county if the lease said so. Assistant Attorney General David N. Kirman answered no.

The reasoning is short. Summary ejectment is a small claims action under N.C.G.S. § 7A-210(2). The Chief District Court Judge can assign small claims to any magistrate in his or her district under § 7A-211, but only if the defendant is a resident of the county where the magistrate sits. A residential tenant lives in the rental property, so the tenant's residence is the county where the property is located. A magistrate in a different county has no statutory authority over the case.

The harder question is whether the parties can vary that rule by contract. The AG's answer was no, on two grounds. Article IV, § 12(4) of the North Carolina Constitution gives the General Assembly authority to prescribe the jurisdiction and powers of magistrates and district court judges. That authority sits with the legislature, not with private parties. The North Carolina Supreme Court had already held in Gaither v. Charlotte Motor Car Co. that contractual provisions that try to choose the courts in which a case is tried impermissibly empower a party to "deprive of jurisdiction one of the courts authorized to hear the cause" against the legislature's will. The federal district court in Roberts v. Lexington Insurance Co. agreed.

Applied to a residential lease: a clause requiring the tenant to be sued in a particular magistrate's court outside the county where the property sits is unenforceable. A different magistrate (in a different county from the property) has no jurisdiction the parties can confer. The magistrate in the county where the property is located has the jurisdiction the statute conferred, and the parties cannot take it away.

The practical upshot for landlords with rental property in one county whose lease form might gesture at a different forum: the eviction must be filed in the county where the rental property sits, before the magistrate the Chief District Court Judge has assigned. The contract clause adds nothing.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The structural rule that magistrate jurisdiction is set by statute and cannot be expanded by contract remains intact. The specific small claims and ejectment statutes have been amended since 1990, including changes to dollar thresholds and procedural details.

Background and statutory framework

The split between magistrate jurisdiction and contractual forum selection clauses reflects a fundamental separation between procedural rules a court must follow and private rights the parties can contract around. Substantive contract terms (rent, term, deposits) belong to the parties to negotiate. Jurisdictional rules belong to the legislature.

The Gaither case from 1921 is one of the older North Carolina authorities on this point. Gaither involved a forum selection clause in a sales contract that the court refused to enforce because doing so would have given the seller power to pick the court for any future dispute. The principle survives in modern contract law as the rule that pre-dispute forum selection clauses are subject to public policy review and must give way when they conflict with jurisdictional statutes.

The opinion did not address several adjacent questions. It did not address commercial leases (where the tenant is typically a business with a place of business that may differ from the property location). It did not address what happens if the tenant has actually moved out of state by the time the action is filed. It did not address whether a venue waiver in a lease (as opposed to a forum-selection clause) might be enforced if neither party objected. But the core teaching (statutory limits on magistrate authority cannot be expanded by contract) is robust enough to handle most variations.

Common questions

What about a commercial lease where the tenant's business is in a different county from the rental property?

The opinion focused on residential leases where the tenant lives at the property. Commercial leases involve different residency analysis: a corporate tenant has its principal place of business as its "residence" for some purposes but may have multiple locations. The opinion's holding about contract jurisdiction-expansion would still apply, but the specific venue question for commercial leases requires separate analysis.

Can the parties agree to a particular magistrate within the same county?

The Chief District Court Judge assigns small claims to magistrates within the district. The parties cannot dictate which magistrate hears the case. Their contract cannot override the Chief District Court Judge's administrative authority.

What if the lease says the tenant agrees to be sued in district court (not before a magistrate) for eviction?

That clause would also fail. § 7A-210 channels summary ejectment to small claims court before a magistrate as the entry-level forum, with appeal de novo to district court if needed. Skipping the magistrate level is not something the parties can agree to.

What if the tenant has left the rental property and lives elsewhere by the time the action is filed?

The AG noted in the opinion that a residential tenant "normally" lives in the rental property and is "therefore a resident of the county where the property is located." A tenant who has actually moved before the action is filed presents a different fact pattern. In practice, summary ejectment is often filed precisely because the tenant has stopped showing up to pay rent, but the property is still the tenant's residence until something has actually changed.

Did this opinion affect existing lease forms used by landlords?

Yes, to the extent any lease form purported to require litigation in a forum outside the county where the property sat. Those provisions were unenforceable under this opinion.

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