If a North Carolina landlord uses 'service by posting' on the door of a rental and the tenant does not show up, can the magistrate award the landlord both possession and back rent in the same default order?

Plain-English summary

The Chief District Court Judge of the 29th Judicial District asked whether a magistrate, in a summary ejectment case where the tenant did not appear, could enter a money judgment for back rent and damages on top of an order for possession. Service had been made under the alternative procedure in N.C.G.S. § 42-29, sometimes called "service by posting": mail to the last known address, attempt to call by telephone, attempt to deliver in person at the premises, and (if all else fails) tack a copy to a conspicuous part of the premises.

Assistant Attorney General David N. Kirkman answered no. The reasoning splits into two pieces.

First, the only reason § 42-29 posting is a permissible substitute for Rule 4 personal service at all is that summary ejectment is an in rem proceeding (it determines who gets possession of a specific piece of real estate) and has to move fast. N.C.G.S. § 42-28 requires the hearing within ten days of the summons. Personal service inside ten days on a tenant who may already have moved out is often impossible. The General Assembly accepted that tradeoff in 1983 when it enacted § 42-29 in response to the U.S. Supreme Court's decision in Greene v. Lindsey, which had held that North Carolina's earlier bare-posting practice violated the Fourteenth Amendment. The 1983 procedure (mail, phone, attempted personal delivery, then posting) added enough belt-and-suspenders steps to be reasonably calculated to give actual notice.

Second, the "reasonably calculated" standard the Supreme Court applied in Greene v. Lindsey is fact-sensitive: it depends on what kind of right is at stake, who the party is, and what the circumstances are. Possession of a rental and a money damages claim are different in those respects. A tenant who has abandoned the premises has no continuing interest in the residence and is unlikely to encounter a notice tacked to the door. That same tenant still has a powerful interest in defending against a money damages claim that could follow them around in collection. The notice procedure that just barely works for the possession question (where the abandoning tenant has effectively conceded the issue) is not enough for the money damages question (which the abandoning tenant has every reason to want to contest if they actually receive notice).

The statutory and constitutional analysis run together. N.C.G.S. § 7A-217(4) tells you the posting procedure is "in summary ejectment cases only," which the AG read as a textual signal that the legislature did not intend posting to support money judgments. Beyond the statutory point, the AG concluded the Constitution itself did not allow it: an in personam money judgment requires service "reasonably calculated" to apprise the defendant of the action, and posting was not.

The practical guidance for landlords: if you want a money judgment for back rent in the same action as your eviction, you must serve the tenant under Rule 4. If you cannot achieve personal service inside the ten-day window, you can still get your possession order through § 42-29 posting, but the money damages will have to be pursued in a separate action (or a continued docket) with proper service.

Currency note

This opinion was issued in 1992. 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 basic constitutional framework of Greene v. Lindsey still controls due process for service of process, and the § 42-29 procedure remains in force, but specific procedural details (timing, notice content, electronic notice options) have evolved. The Magistrate Bench Book and Administrative Office of the Courts forms should be consulted for current practice.

Background and statutory framework

Greene v. Lindsey is one of the cleanest U.S. Supreme Court opinions on service of process. The plaintiffs were tenants in a public housing project whose eviction notices had been posted on their apartment doors. The notices kept getting torn off by children, and the tenants never got actual notice of the eviction proceedings. The Supreme Court held that bare posting on the door was not reasonably calculated, under all the circumstances, to apprise the tenants of the action, in violation of the Fourteenth Amendment due process clause.

North Carolina's response in 1983 was § 42-29's sequenced procedure. The mail step satisfies Mullane v. Central Hanover Bank's general rule that notice by mail is presumptively constitutional. The phone attempt and attempted personal delivery add two additional opportunities for actual notice. Posting becomes the last-resort backstop. The combined four-step procedure was designed to satisfy Greene v. Lindsey while still letting summary ejectment cases move on the ten-day schedule § 42-28 required.

The in rem versus in personam distinction the AG drew is a venerable jurisdictional concept. An in rem action affects rights in a thing (here, the lease and the premises). An in personam action affects rights of a person (here, a money judgment that can be enforced against the tenant's wages or property anywhere). The constitutional service rules are looser for in rem because the thing is fixed in place, all interested parties are tied to that fixed place, and an attempt at notice through the place is at least loosely connected to all potential claimants. In personam jurisdiction has no such anchor and requires more reliable notice.

The opinion did not address several adjacent practical questions: whether a landlord could amend the complaint after obtaining possession to add a money claim under a different service procedure, whether a magistrate's possession-only judgment had collateral-estoppel effect against the tenant on the rent question in a later case, or how a magistrate should handle a hybrid case where service had been personal as to part of the action and by posting as to part. Those questions were left for case-by-case adjudication.

Common questions

If the tenant actually did get the posted notice and showed up to defend, could the magistrate enter a money judgment?

The opinion did not directly address that scenario, but the reasoning suggests the answer would still be no based on jurisdictional grounds. § 7A-217(4) limits the posting procedure to summary ejectment cases. If the tenant appears voluntarily, however, the appearance itself can sometimes cure defective service for in personam purposes, depending on whether the tenant objects.

Could the landlord just file the money claim in a separate small claims action?

Yes. A separate small claims action for back rent would proceed under regular Rule 4 service. The landlord would lose the procedural economy of resolving everything in one summary ejectment hearing, but would have a clean path to a money judgment.

Did this opinion mean the landlord lost the right to back rent if the tenant could not be personally served?

No. It meant the landlord could not get a money judgment in the same proceeding with posted service. The landlord still had the substantive claim for back rent and could pursue it separately.

What about the security deposit? Could the magistrate apply the deposit to back rent in the posted-service action?

The opinion did not address this. The security deposit accounting is typically handled by separate provisions of the Tenant Security Deposit Act, not by the summary ejectment judgment itself.

Did Greene v. Lindsey apply to small claims actions generally, or only to summary ejectment?

Greene v. Lindsey applied broadly to due process for service of process. § 42-29 was specifically a response to it in the summary ejectment context. The same constitutional framework applies to any small claims service question, but other types of claims have their own statutory service rules.

Citations

• N.C.G.S. § 1A-1, Rule 4 (service of process)
• N.C.G.S. § 42-28 (10-day hearing requirement)
• N.C.G.S. § 42-29 (service by posting)
• N.C.G.S. § 7A-213 (small claims service)
• N.C.G.S. § 7A-217(4) (posting limited to summary ejectment)
• Greene v. Lindsey, 456 U.S. 444 (1982)

Source

• Landing page: https://ncdoj.gov/opinions/magistrates-court-service-by-posting-summary-ejectment-jurisdiction-to-enter-money-judgment/

Original opinion text

Subject: Magistrate's Court; Service by "Posting"; Summary Ejectment, N.C.G.S. § 42-29; Jurisdiction to Enter Money Judgment.

Requested by: Honorable Thomas N. Hix, Chief District Court Judge, 29th Judicial District

Question: In a summary ejectment proceeding where the tenant does not make an appearance, may the magistrate enter a money judgment for rents and other damages in addition to an order for possession where service of process was effected by first class mail and posting on the premises pursuant to G.S. § 42-29?

Conclusion: No.

The general requirements for service of process in civil proceedings are found in General Statutes § 1A-1, Rule 4. Rule 4 requires personal service of process whenever practical, but allows for substituted service (e.g. service of process by publication) after efforts at personal service of process fail.

The General Assembly created an exception to G.S. § 1A-1, Rule 4 in small claims actions for summary ejectment. G.S. § 7A-217(4) states that, in summary ejectment cases only, service of process may be effected through a procedure set forth in G.S. § 42-29. That procedure, often referred to as "service by posting," permits the officer receiving the summons to mail it, along with the summary ejectment complaint, to the defendant at his last known address and then attempt to notify the defendant of the pendency of the action by means of a telephone call. If the telephone call is not possible or successful, the officer must make at least one attempt to visit the premises at an appropriate hour and deliver the summons and complaint personally to the defendant or a person of suitable age and discretion residing therein. In the event that personal delivery of the summons and complaint cannot be made, the officer may affix copies to some conspicuous part of the premises.

The General Assembly had to address several concerns when it adopted this procedure in 1983. The United States Supreme Court had just held in Greene v. Lindsey, 456 U.S. 444 (1982), that North Carolina's practice of merely posting the summons and summary ejectment complaint on the door of the premises when the tenant could not be found was not reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and was therefore violative of the Fourteenth Amendment to the U.S. Constitution. Requiring adherence to regular service of process rules, however, would unduly delay summary ejectment proceedings, which are designed to proceed at an accelerated pace so that landlords might recover their rental properties quickly from defaulting tenants (Note: G.S. § 42-28 requires that summary ejectment hearings take place within ten days). Physically delivering the summons and complaint to the tenant within such a short period of time can be difficult, often because the tenant, unbeknownst to the landlord or the sheriff, has abandoned the premises.

G.S. § 42-29 successfully addresses these concerns. The procedure it prescribes meets the requirements of Greene v. Lindsey because it is reasonably calculated to apprise parties who are truly interested in possession of the premises that the action has been commenced. A money damages claim, on the other hand, does not require an expedited hearing. A tenant who has abandoned the premises would still have an interest in defending such a claim. G.S. § 42-29 is not reasonably calculated, under all the circumstances, to apprise such a tenant of the pendency of the action for money damages.

Because G.S. § 7A-217(4) states that the procedure found in G.S. § 42-29 can be used in summary ejectment cases only, and because summary ejectment is in the nature of an in rem proceeding, an in personam money damages claim cannot be heard and a money judgment cannot be entered in an action where service of process is effected through that alternative method. The requirements for actual service of process found elsewhere in G.S. § 7A-213 and in G.S. § 1A-1, Rule 4 would still apply to the claim for rents and other money damages.

LACY H. THORNBURG, Attorney General
David N. Kirkman, Assistant Attorney General