If a North Carolina tenant is sued for eviction in small claims court, do they have to post a defense bond before they can fight the case?

Plain-English summary

The Secretary of the Department of Crime Control and Public Safety asked whether defendants in summary-ejectment proceedings (small-claims evictions) must post a defense bond under N.C.G.S. § 1-111 before they can plead. The answer was no.

Section 1-111 requires defendants in "actions for the recovery or possession of real property" to file a bond "before [they are] permitted to plead." The bond's purpose, per Morris v. Wilkins (N.C. 1955), is to protect the plaintiff against loss of rents and profits while wrongfully out of possession.

The AG's reasoning that § 1-111 does not apply to summary ejectment had three legs:

1. Summary-ejectment defendants are not required to plead. Under § 7A-218, a defendant's failure to file a written answer counts as a general denial. So a defendant can maintain a full defense without filing any pleading. The § 1-111 bond requirement, by its terms, attaches only "before [the defendant] is permitted to plead." If pleading is not required, the bond cannot be a precondition to defending.

2. Summary ejectment is a fast, statutorily-governed procedure with its own remedies. Trials are set within 30 days of filing under § 7A-214. The case before a magistrate is short, and the kind of large rent loss § 1-111 was designed to prevent rarely arises. The statute itself provides the protection the legislature wanted: under § 42-34, if a tenant appeals a magistrate's judgment to district court and wants to stay execution, the tenant must escrow ongoing rent. That is the only undertaking the legislature intended for summary-ejectment defendants.

3. Chapter 42 is the exclusive remedy. Section 42-25.6 says residential tenants may be evicted "only in accordance with the procedure prescribed" in the summary-ejectment statute. The Court of Appeals confirmed this in Dobbins v. Paul (N.C. App. 1984). Other statutory provisions, including § 1-111, do not apply.

The AG dealt with two cases that had touched § 1-111 in landlord-tenant settings:

• Crockett v. Lowry (N.C. App. 1970). A magistrate had imposed an unauthorized $100 appeal bond. The Court of Appeals invalidated the appeal bond but mentioned in dicta that a § 1-111 defense bond "could have been required before the defendant was allowed to plead to the complaint." The AG read this dictum as nonbinding because the case involved a different bond and the defense-bond issue was not before the court.
• Peake v. Babson (N.C. App. 1971). A trial court had struck a tenant's answer for failure to post a § 1-111 bond. The applicability of § 1-111 was not contested at trial or on appeal. The Court of Appeals affirmed on res judicata grounds in a later separate suit. The AG treated this as unreasoned procedural background, not as a precedent applying § 1-111 to summary ejectment.

The AG also noted that § 1-111 has been applied in actual North Carolina case law almost exclusively to common-law land-title and property-recovery disputes, not landlord-tenant evictions. And even there courts have enforced it leniently, sometimes treating the plaintiff as waiving the bond unless raised early.

Currency note

This opinion was issued in 1995. 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. North Carolina's small-claims and landlord-tenant statutes (Chapters 7A and 42) have been amended multiple times since 1995, including the § 1-111 bond amount and various procedural provisions. The general conclusion (the § 1-111 defense bond does not apply to summary ejectment) is foundational and likely still good law, but counsel should verify under current statute and any subsequent appellate decisions.

Historical context: what the AG concluded

The AG's analysis is technically driven and lays out the procedural map cleanly:

G.S. § 1-111 by its terms attaches before pleading. The bond is required "before [the defendant] is permitted to plead." If pleading is not required, the bond is not a precondition to defending.

Summary ejectment doesn't require pleading. Section 7A-218 makes silence equivalent to a general denial. Section 7A-220 says answers and counterclaims may be filed under §§ 7A-218 and 7A-219, but failure to file does not waive defenses. Section 7A-223 confirms that pleadings in small-claim summary ejectment are the same as in other small-claim actions, where only the complaint is required.

The legislature provided its own undertaking via G.S. § 42-34. When a tenant appeals to district court and wants execution stayed, the tenant must escrow ongoing rent. That is the statutory mechanism for protecting landlord rent-loss during litigation. Requiring an additional § 1-111 bond at the magistrate-court stage would be duplicative.

Section 42-25.6 makes Chapter 42 exclusive. Residential tenants may be evicted "only in accordance with the procedure prescribed" in the summary-ejectment chapter. Dobbins v. Paul (N.C. App. 1984) confirms that summary ejectment under Chapter 42 is the landlord's "exclusive remedy." That exclusivity supports the reading that Chapter 42 provides the complete procedural framework, displacing G.S. § 1-111.

The AG also noted that case law applying § 1-111 has been almost exclusively about land-title and property-recovery disputes (Gates v. McDonald is cited), and even there enforced leniently, often by treating the plaintiff as waiving the bond if not raised early.

Common questions

Do I have to post a bond to defend an eviction case in North Carolina?

No. The G.S. § 1-111 defense bond does not apply to summary ejectment. You can file an answer, or stay silent (which counts as a general denial under § 7A-218), and defend the case at the magistrate-court trial without posting any bond.

What if I lose at the magistrate level and want to appeal?

You can appeal to district court. If you want to stay enforcement of the eviction judgment, you must escrow ongoing rent under G.S. § 42-34. That is the only undertaking the law requires of you.

What is the purpose of G.S. § 1-111?

To protect plaintiffs in common-law land-recovery and title disputes from rent and profit losses during protracted litigation. The bond was designed for cases that take months or years, not for summary-ejectment proceedings that wrap up at the magistrate level within 30 days.

Has any North Carolina court enforced a § 1-111 bond in a summary-ejectment case?

The lower court in Peake v. Babson did, but the Court of Appeals affirmed on res judicata grounds without reviewing the § 1-111 application. The AG read this as nonprecedential on the bond question. Crockett v. Lowry mentioned the defense bond in dicta but did not impose one in a summary-ejectment context.

Does this opinion apply to commercial leases too?

The opinion focuses on residential summary ejectment. Section 42-25.6 specifically references residential tenants. Commercial eviction follows the same Chapter 42 framework, and the AG's reasoning (no pleading required, fast magistrate proceedings, § 42-34 rent escrow on appeal) applies the same way. Counsel should verify with current case law.

Background and statutory framework

N.C.G.S. § 1-111 (Defense bonds). "In all actions for the recovery or possession of real property, the defendant, before he is permitted to plead, must execute and file in the office of the clerk of the superior court of the county where the suit is pending an undertaking with sufficient surety, in an amount fixed by the court, not less than two hundred dollars ($200.00), to be void on condition that the defendant pays to the plaintiff all costs and damages for the loss of rents and profits."

Chapter 42, Article 3 (Summary ejectment). The statutory scheme for landlord-tenant eviction. Section 42-25.6 makes the chapter exclusive for residential evictions. Section 42-34 requires rent escrow when a tenant appeals to district court and wants execution stayed. Section 42-34(a) entitles either party to demand trial at the first district-court session after appeal.

Chapter 7A, small-claims procedure. Section 7A-214 sets the 30-day trial deadline. Section 7A-218 makes failure to file an answer equivalent to general denial. Section 7A-220 governs counterclaims. Section 7A-223 confirms that summary-ejectment pleadings are the same as in other small-claim actions.

The opinion is signed by Daniel D. Addison (Associate Attorney General) under the authority of AG Michael F. Easley.

Citations

• N.C.G.S. §§ 1-111, 7A-214, 7A-218, 7A-219, 7A-220, 7A-223, 42-25.6, 42-26, 42-30, 42-31, 42-34, 42-34(a).
• Morris v. Wilkins, 241 N.C. 507, 85 S.E.2d 892 (1955).
• Crockett v. Lowry, 8 N.C. App. 71, 173 S.E.2d 566 (1970).
• Peake v. Babson, 11 N.C. App. 413, 181 S.E.2d 259 (1971).
• Gates v. McDonald, 1 N.C. App. 587, 162 S.E.2d 143 (1968).
• Dobbins v. Paul, 71 N.C. App. 113, 321 S.E.2d 537 (1984).
• A. McIntosh, North Carolina Practice and Procedure, at 334 (1929).
• 52A C.J.S. Landlord and Tenant § 752 (1968).

Source

• Landing page: https://ncdoj.gov/opinions/defense-bonds-in-land-repossession-actions-summary-ejectment/

Original opinion text

DATE: 10 February 1995

Subject: N.C.G.S. § 1-111, Defense Bonds in Land Repossession Actions; Summary Ejectment, N.C.G.S. §§ 42-26, 42-30, 42-31, 42-34, 7A-214, 7A-218, 7A-219, 7A-220, 7A-223.

Requested By: Thurman B. Hampton, Secretary, Department of Crime Control and Public Safety

Question: Are defendants in summary ejectment actions required to post bond before pleading, pursuant to N.C.G.S. § 1-111?

Conclusion: No

Ordinarily, a defendant who is brought into court by the action of the plaintiff is not required to give bond or other security as a condition precedent to his right to defend the action. A. McIntosh, North Carolina Practice and Procedure, at 334 (1929).

However, a defense bond is required by statute in certain actions. G.S. § 1-111 states:

"In all actions for the recovery or possession of real property, the defendant, before he is permitted to plead, must execute and file in the office of the clerk of the superior court of the county where the suit is pending an undertaking with sufficient surety, in an amount fixed by the court, not less than two hundred dollars ($200.00), to be void on condition that the defendant pays to the plaintiff all costs and damages for the loss of rents and profits."

The purpose of the bond in G.S. § 1-111 is to assure the plaintiff that he will suffer no damages during such period as he may be wrongfully deprived of possession. Morris v. Wilkins, 241 N.C. 507, 512, 85 S.E.2d 892, 895 (1955).

Summary ejectment is a procedure by which a landlord may remove a holdover tenant from his house or land. Summary ejectment proceedings are governed by special statutes and rules of practice. Since these proceedings are in derogation of common law, they must be strictly construed in favor of the tenant. 52A C.J.S. Landlord and Tenant § 752 (1968).

In North Carolina, summary ejectment proceedings are governed by Article 3, Chapter 42 of the General Statutes. Summary ejectment proceedings are almost always small claim actions determined by magistrates. Pleadings in small claim summary ejectment actions are the same as in other small claim actions. G.S. § 7A-223. There are no required pleadings other than the complaint in small claim actions before a magistrate. Answers and counterclaims may be filed by the defendant in accordance with G.S. § 7A-218 and G.S. § 7A-219. G.S. § 7A-220. The defendant may file a written answer admitting or denying all or any of the allegations in the complaint, or pleading new matter in avoidance. No particular form is required. Failure of the defendant to file a written answer constitutes a general denial. G.S. § 7A-218. Thus, a defendant is not required to file any pleading at all to maintain a defense in a summary ejectment proceeding.

G.S. § 1-111 requires a defendant to post bond "before he is permitted to plead." Therefore, G.S. § 1-111 has no application except in actions, such as common law land repossession cases, where a defendant is required to plead. By contrast, defendants in statutorily-governed summary ejectment proceedings are not required to plead at all to deny the allegations of the complaint. It is unlikely that the General Assembly intended to require summary ejectment defendants to post bond to maintain a defense that is otherwise automatic. One can only conclude that the General Assembly did not intend for G.S. § 1-111 to apply to summary ejectment proceedings at all.

G.S. § 1-111 is designed to protect landowners from potential losses in rents and profits during protracted litigation. A summary ejectment action heard by a magistrate is an expedited judicial proceeding. By statute, the trial of a small claim summary ejectment action is set no more than 30 days after the action is commenced. G.S. § 7A-214. Seldom does a summary ejectment action take more than a few weeks to complete. In a summary ejectment proceeding before a magistrate a landlord would seldom incur the kind of monetary loss anticipated by G.S. § 1-111.

After a magistrate's judgment for ejectment, a defendant may appeal to district court and may request that execution of judgment be suspended during the appeal. Upon appeal, either party may demand that the case be tried at the first session of court after the appeal is docketed. G.S. § 42-34(a). Even so, the case could become somewhat prolonged on appeal in district court, and the landlord could incur losses of rent. The General Assembly has provided a remedy for such potential losses in the summary ejectment statute itself. G.S. § 42-34 says that if a defendant wants to have judgment suspended during an appeal he must sign an undertaking that he will pay his rent into the court as it becomes due during the pendency of the appeal.

It would be duplicative to require a defendant to post a G.S. § 1-111 defense bond to appear before the magistrate, and then require him to make an additional undertaking for rent to suspend judgment while his case is appealed to district court. It appears that the only undertaking the General Assembly intended to require of summary ejectment defendants is the G.S. § 42-34 rent undertaking they must make to suspend judgment when they appeal their cases to district court.

Additional support for this conclusion is found in G.S. § 42-25.6, which states that residential tenants may be evicted "only in accordance with the procedure prescribed" in the summary ejectment statute. Our Court of Appeals has acknowledged this, holding that summary ejectment proceedings pursuant to Chapter 42 are a landlord's "exclusive remedy" to regain possession of his property. Dobbins v. Paul, 71 N.C. App. 113, 117, 321 S.E.2d 537, 540-541 (1984). The General Assembly did not intend for other statutory provisions, such as G.S. § 1-111, to apply to summary ejectment proceedings.

A review of North Carolina case law indicates that G.S. § 1-111 has been applied almost exclusively in cases involving land title disputes or other property disputes not involving typical landlord-tenant evictions. E.g., Gates v. McDonald, 1 N.C. App. 587, 162 S.E.2d 143 (1968). Even when it has been applied the courts have enforced it leniently, often holding that the plaintiff waives the bond requirement unless he insists upon it early in the litigation. Id.

G.S. § 1-111 has arisen in only two reported cases involving typical landlord-tenant summary ejectment proceedings.

In Crockett v. Lowry, 8 N.C. App. 71, 173 S.E.2d 566 (1970), the landlords brought an action for summary ejectment against a holdover residential tenant after the expiration of the tenant's lease term. At the time the defendant answered the complaint, no mention was made of the defense bond required by G.S. § 1-111, and the tenant did not pay any such bond. The magistrate entered judgment for the landlord on the merits of the case, and the tenant appealed to district court. The magistrate required that the defendant pay a $100.00 appeal bond. The tenant did not pay this appeal bond. The district court dismissed the tenant's appeal because she did not pay the bond imposed by the magistrate.

The tenant appealed to the Court of Appeals. On appeal, the landlord argued that the appeal bond imposed by the magistrate was authorized by G.S. § 1-111. The court ruled that the magistrate had no statutory authority to impose an appeal bond. However, the court distinguished between this unauthorized appeal bond and the defense bond authorized by G.S. § 1-111. The court said that the defense bond authorized by G.S. § 1-111 "could have been required before the defendant was allowed to plead to the complaint." The court found that since the landlords did not challenge the nonpayment of this defense bond at the time the defendant answered the complaint, it was too late to raise the issue on appeal. Id.

In Peake v. Babson, 11 N.C. App. 413, 181 S.E.2d 259 (1971), a landlord brought a summary ejectment action against her holdover residential tenant. The tenant filed an answer without filing a bond in accordance with G.S. § 1-111. The landlord successfully moved to have the tenant's answer stricken for failure to post the required bond. Judgment was entered for the plaintiff.

The tenant later brought a separate action against the landlord, alleging the same argument she had made in defense to the summary ejectment action (i.e., equitable title). The court dismissed this second action on the grounds of res judicata, and the Court of Appeals affirmed.

These decisions do not alter the conclusion that G.S. § 1-111 is not applicable in summary ejectment actions. The court's statement in Crockett, to the effect that a defense bond "could have been" required in that case, was dicta. The issue before the court was the legality of another sort of bond imposed by a magistrate, and the G.S. § 1-111 defense bond was discussed merely by way of comparison.

Similarly, in Peake the applicability of G.S. § 1-111 in summary ejectment proceedings was not before the court. The lower court applied G.S. § 1-111 in a summary ejectment proceeding and struck a defendant's answer for failure to post the required bond. However, the Court of Appeals mentioned this merely as part of its recital of the procedural history of the case. The application of G.S. § 1-111 was not challenged in the lower court and not raised or discussed as an issue on appeal.

In conclusion, statutory summary ejectment proceedings are separate and distinct from the kinds of common law land repossession actions anticipated by G.S. § 1-111. G.S. § 1-111 is inapplicable to summary ejectment proceedings, and defendants in summary ejectment proceedings are not required to post bond before pleading.

Michael F. Easley
Attorney General

Daniel D. Addison
Associate Attorney General