Complaint in Summary Ejectment (Drafting Companion to AOC-CVM-201)

COMPLAINT IN SUMMARY EJECTMENT — NORTH CAROLINA (DRAFTING COMPANION TO AOC-CVM-201)

TABLE OF CONTENTS

1. Caption
2. Parties
3. Nature of Tenancy
4. Grounds for Summary Ejectment Under § 42-26
5. Pre-Suit Notice
6. Money Damages
7. Service of Process
8. Article 7 — Expedited Eviction for Criminal Activity (Optional Alternative Track)
9. Prayer for Relief
10. Verification
11. Signature and Filing
12. Magistrate Hearing Preparation Checklist
13. North Carolina Practice Notes
14. Sources and References

1. CAPTION

STATE OF NORTH CAROLINA

[COUNTY NAME] COUNTY

IN THE GENERAL COURT OF JUSTICE

DISTRICT COURT DIVISION — SMALL CLAIMS COURT (MAGISTRATE)

FILE NO. [________________________________]

COMPLAINT IN SUMMARY EJECTMENT
(N.C. Gen. Stat. § 42-26 et seq.; AOC-CVM-201)

Plaintiff, complaining of Defendants, alleges and says:

2. PARTIES

2.1. Plaintiff [LANDLORD NAME] is the [owner / lessor / property manager / authorized agent of the owner] of the rental Premises described below. Plaintiff's mailing address is [ADDRESS], telephone [___-___-____], email [________________________________].

2.2. [If Plaintiff is a property manager or agent, identify the principal:] Plaintiff acts as the duly authorized agent of [OWNER NAME], the record owner of the Premises, pursuant to a written management agreement dated [__/__/____].

2.3. [If Plaintiff is an LLC or corporation:] Plaintiff is a [North Carolina / foreign] [limited liability company / corporation] in good standing with the NC Secretary of State, ID No. [___], and is represented in this action by [a non-attorney member or manager (if a single-member LLC under § 84-2.1) / a licensed NC attorney (if multi-member LLC or corporation)].

2.4. Defendant [TENANT NAME] is the tenant of the Premises and is currently in possession.

2.5. Additional Defendants [ALL OTHER OCCUPANTS / "John/Jane Doe"] are persons occupying the Premises whose true names are unknown to Plaintiff but who claim some right of possession through, under, or with Defendant Tenant.

2.6. The Premises ("Premises") are located at [STREET ADDRESS, UNIT, CITY, ZIP, COUNTY], [COUNTY] County, North Carolina, and are within the territorial jurisdiction of this Court.

3. NATURE OF TENANCY

3.1. Plaintiff and Defendant entered into a [written / oral] rental agreement dated [__/__/____] (the "Lease") for the Premises.

3.2. The Lease establishes a tenancy of the following type:

☐ Fixed term beginning [__/__/____] and ending [__/__/____].

☐ Month-to-month with rent due on the [___] day of each month.

☐ Week-to-week with rent due every [___] days.

☐ Year-to-year with the current year ending [__/__/____].

☐ Manufactured-home park lot tenancy subject to § 42-14.3.

3.3. Rent under the Lease is $[________] per [month / week / period], payable to [PAYEE] at [ADDRESS / METHOD].

3.4. The Lease [contains / does not contain] an express forfeiture-and-reentry clause covering the breach alleged in Section 4 below. [If yes, quote the clause:]

"[VERBATIM TEXT OF FORFEITURE/REENTRY CLAUSE]"

3.5. A [true and accurate copy of the Lease / verified summary of the oral lease terms] is attached as Exhibit A.

4. GROUNDS FOR SUMMARY EJECTMENT UNDER § 42-26

Plaintiff brings this action on the following statutory ground(s) — check all that apply:

4(A). Holdover After Expiration of Lease Term — § 42-26(a)(1)

☐ The Lease term expired on [__/__/____].

☐ Defendant has remained in possession of the Premises after expiration without Plaintiff's consent.

☐ The Lease did not contain an automatic-renewal or month-to-month conversion clause; OR any such clause has been timely terminated by Plaintiff via § 42-14 notice issued on [__/__/____].

☐ No additional pre-suit notice is required for a fixed-term holdover, because the Lease itself notified Defendant of the end date.

4(B). Breach of Forfeiture-Clause Condition — § 42-26(a)(2)

☐ The Lease at Section [___] provides for forfeiture and reentry upon the breach alleged.

☐ Defendant breached the Lease as follows: [DESCRIBE BREACH WITH DATES, FACTS, EVIDENCE].

☐ Plaintiff served a Notice to Cure or Quit on [__/__/____], requiring cure within [___] days. [Attach as Exhibit B with proof of service.]

☐ Defendant failed to cure within the time provided.

☐ The Lease term has been forfeited in accordance with the forfeiture clause, and Defendant has no right to remain.

4(C). Failure to Pay Rent — § 42-26(a)(3) (with § 42-3)

☐ Defendant has failed to pay rent that became due on [__/__/____] and subsequent due dates.

☐ Plaintiff served on Defendant a written 10-Day Demand for Past-Due Rent on [__/__/____], in accordance with N.C. Gen. Stat. § 42-3. [Attach as Exhibit C with proof of service.]

☐ More than ten (10) days have elapsed since service of the demand, and Defendant has not paid the past-due rent.

☐ The amount of past-due rent and permitted lease charges remaining unpaid as of the filing date is $[________], itemized in Section 6 below.

4(D). Periodic-Tenancy No-Cause Termination Holdover — § 42-26(a)(1) with § 42-14

☐ Plaintiff served a [7-day month-to-month / 2-day week-to-week / 1-month year-to-year / 60-day manufactured-home-park] Notice to Terminate under § 42-14 on [__/__/____], terminating the tenancy effective [__/__/____]. [Attach as Exhibit D with proof of service.]

☐ Defendant has remained in possession after the termination date without Plaintiff's consent.

4(E). [Optional] Article 7 Expedited Eviction — Criminal Activity (§§ 42-59 to 42-63)

See Section 8 below.

5. PRE-SUIT NOTICE

5.1. Notice issued. Plaintiff issued the pre-suit notice identified in Section 4 above (a true and accurate copy attached as Exhibit [B / C / D]).

5.2. Method of service. The notice was served on Defendant by:

☐ Personal delivery to Defendant on [__/__/____] at [___:___] [AM/PM].

☐ Substituted service on [NAME, RELATIONSHIP, AGE] at the Premises on [__/__/____].

☐ Posting on a conspicuous part of the Premises and mailing first-class to Defendant at the Premises and at [LAST KNOWN ADDRESS] on [__/__/____].

☐ Certified U.S. mail, return receipt [delivered / unclaimed], on [__/__/____].

5.3. Compliance with cure / notice period. The cure period or notice period required by statute and/or the Lease has expired without compliance by Defendant.

5.4. Federal protections. To Plaintiff's knowledge, neither Defendant nor any household member is on active military duty subject to the Servicemembers Civil Relief Act (50 U.S.C. § 3951), and the Premises are not subject to a federal program (e.g., Section 8, public housing, project-based rental assistance) requiring additional or different notice that has not been given. [If federal program applies, describe additional notice given.]

6. MONEY DAMAGES

6.1. Plaintiff seeks a money judgment in the following amount:

6.2. The total demanded above does [ ] [ does not ] exceed the Small Claims jurisdictional cap of $10,000 under N.C. Gen. Stat. § 7A-210. [If exceeds: Plaintiff [caps the prayer at $10,000 / waives the excess / files damages separately in District Court].]

6.3. Per-diem rent accruing post-filing: $[________] per day from [FILING DATE] through entry of judgment, requested as additional damages.

6.4. Plaintiff requests pre-judgment interest at the legal rate from the date each installment of rent became due (§ 24-5).

7. SERVICE OF PROCESS

7.1. Plaintiff requests that the Magistrate's Summons (issued by the clerk on AOC-CVM form or accompanying AOC-CV-100) and this Complaint be served on each Defendant by the Sheriff of [COUNTY] County in accordance with N.C. Gen. Stat. § 42-29.

7.2. Service procedure under § 42-29. Plaintiff acknowledges: (a) the Sheriff shall mail a copy of the summons and complaint to Defendant at the Premises and any other known address; (b) the Sheriff shall attempt personal service within five (5) days of issuance of the summons; (c) if personal service or substituted service on a person of suitable age and discretion at the Premises is not effected, the Sheriff is authorized to post the summons and complaint on a conspicuous part of the Premises.

7.3. Effect of posting service on money judgment. Plaintiff acknowledges that if Defendant is served only by posting (no personal or substituted service), the Magistrate may enter a judgment for possession but may not enter a money judgment against Defendant absent personal jurisdiction. Plaintiff [reserves / waives] the money-judgment claim accordingly.

7.4. Last known addresses for mailing under § 42-29: Premises address (above); plus [ADDITIONAL KNOWN ADDRESSES].

8. ARTICLE 7 — EXPEDITED EVICTION FOR CRIMINAL ACTIVITY (OPTIONAL ALTERNATIVE TRACK)

8.1. [OPTIONAL — DELETE IF NOT INVOKING ARTICLE 7] Plaintiff additionally or alternatively invokes the expedited eviction procedure under N.C. Gen. Stat. §§ 42-59 to 42-63 on the following grounds:

☐ Defendant or a member of Defendant's household, or a guest, has engaged in criminal activity on or in the immediate vicinity of the Premises.

☐ The activity threatens the health, safety, or right to peaceful enjoyment of the Premises by other residents.

☐ Specific incidents: [DESCRIBE — dates, conduct, arrest/citation/conviction information, witnesses, police-report numbers].

☐ Plaintiff seeks the additional remedies authorized by Article 7, including expedited possession and termination notwithstanding the absence of an express lease forfeiture clause.

9. PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays the Court to:

A. Enter judgment for possession of the Premises in favor of Plaintiff;

B. Enter a money judgment against Defendant [TENANT NAME] in the amount stated in Section 6.1, plus per-diem rent under Section 6.3, plus pre-judgment interest;

C. Issue a writ of possession to the Sheriff of [COUNTY] County for execution after the appeal period expires under § 7A-228 and § 42-36.2;

D. Award court costs, Sheriff service fees, and (if applicable and within § 6-21.2) reasonable attorney's fees;

E. Grant such other and further relief as the Court deems just and proper.

10. VERIFICATION

STATE OF NORTH CAROLINA

COUNTY OF [________________]

I, [AFFIANT NAME], being duly sworn, depose and say: I am the Plaintiff (or an authorized representative of the Plaintiff entity) in the above-captioned action. I have read the foregoing Complaint and know the contents thereof. The same is true of my own knowledge, except as to those matters stated on information and belief, and as to those matters I believe them to be true.

____________________________________
[AFFIANT NAME], [TITLE]

Sworn to and subscribed before me this [___] day of [MONTH], 20[__].

____________________________________
Notary Public

My Commission Expires: [__/__/____]

[Notary Seal]

11. SIGNATURE AND FILING

Date: [__/__/____]

____________________________________
[NAME]
[TITLE — Plaintiff / Authorized Member-Manager / Property Manager / Attorney for Plaintiff]
[N.C. State Bar No., if attorney: ___]
[FIRM NAME, if applicable]
[ADDRESS]
[CITY, NC ZIP]
Telephone: [___-___-____]
Fax: [___-___-____]
Email: [________________________________]

FILING CHECKLIST:

☐ AOC-CVM-201 fully completed (transferred from this companion).

☐ This drafting companion attached as a continuation if needed.

☐ Exhibit A — Lease (full copy).

☐ Exhibit B / C / D — Pre-suit notice(s) with proof of service.

☐ Verified rent ledger / payment history.

☐ Magistrate's Summons (AOC-CV-100 / -CVM equivalent) — clerk-issued.

☐ Filing fee paid (or affidavit of indigency on AOC-G-106 if waiver sought).

☐ Sufficient copies for the court file, Sheriff, and each Defendant.

12. MAGISTRATE HEARING PREPARATION CHECKLIST

12.1. Bring to hearing:

☐ Original verified Complaint (file-stamped).

☐ Original Lease.

☐ All pre-suit notices with proof of service.

☐ Rent ledger covering at least 12 months.

☐ Bank deposit records for rent received.

☐ Any returned-check, NSF, or bounced-payment evidence.

☐ Photographs of any property damage.

☐ Witness availability (property manager, maintenance, neighbors as appropriate).

☐ Police-report numbers, code-enforcement notices, prior warnings.

☐ Authority to settle (if Plaintiff wants flexibility for negotiated move-out).

12.2. Anticipate defenses and counterclaims (see AOC-CVM-202 Answer):

☐ Habitability (§ 42-42) — be prepared with maintenance logs and inspection records.

☐ Retaliation (§ 42-37.1) — document non-retaliatory motive.

☐ Defective notice — confirm timing, service, and content of pre-suit notice.

☐ Improper service of summons — verify Sheriff's return.

☐ Waiver by acceptance of rent — confirm rent acceptance protocol.

☐ Equitable cure / partial payment — be prepared to articulate position.

☐ Discrimination / fair housing — confirm consistent enforcement.

12.3. Possible outcomes:

• Judgment for Plaintiff for possession only.
• Judgment for Plaintiff for possession and money damages.
• Judgment for Defendant (dismissal).
• Continuance for additional service or evidence.
• Settlement / consent judgment with payment plan or move-out date.

13. NORTH CAROLINA PRACTICE NOTES

13.1. Three-ground trichotomy under § 42-26(a). The statute is exclusive: a landlord seeking summary ejectment under Article 3 must fit one of the three statutory grounds (holdover, forfeiture-clause breach, or rent default with demand). For non-rent breaches, the lease must contain an express forfeiture-and-reentry clause covering the breach; otherwise, summary ejectment is unavailable, and the landlord must wait for term expiration or sue for breach of contract in District Court.

13.2. Why nonpayment is the easiest ground. Most NC residential leases expressly authorize forfeiture for nonpayment AND § 42-3 supplies a default forfeiture mechanism. The 10-day demand operates as both the substantive trigger and the procedural prerequisite. Forms-based magistrates dismiss complaints lacking proof of demand even when the lease has its own forfeiture clause.

13.3. The "forfeiture clause" trap for non-rent breaches. Non-rent breaches without a matching forfeiture clause cannot ground summary ejectment. Stanley v. Harvey, 90 N.C. App. 535 (1988), and progeny. Verify the lease language matches the breach.

13.4. Magistrate hearing timing — § 42-28 / § 42-29. The magistrate sets the trial date when the summons issues. The summons and complaint must be served at least two days before the hearing (excluding holidays). A typical timeline: file Day 0; Sheriff service days 1-5; hearing day 7. Tenants frequently arrive unrepresented; landlords benefit by being prepared and concise.

13.5. Posting service caveat. § 42-29 authorizes service by posting plus mailing if personal/substituted service fails. Posting service confers in rem jurisdiction (sufficient for possession) but NOT personal jurisdiction (insufficient for money judgment). NCDOJ opinion confirms this limitation.

13.6. Appeal de novo to District Court — § 7A-228. Either party may appeal within 10 days. To stay the writ of possession during the appeal, the tenant must (a) pay court costs to perfect appeal AND (b) post a bond and pay rent to the clerk under § 42-34. Tenant failure to maintain the § 42-34 bond/rent payments allows the landlord to obtain expedited writ execution.

13.7. Writ of possession timing — § 42-36.2. A writ may not issue earlier than 10 days after entry of the magistrate's judgment (allowing for appeal). The Sheriff posts a notice of execution at the Premises at least 2 days before padlocking (or the period set by local Sheriff policy, often longer).

13.8. County-level practice variations.

• Wake County: Eviction Diversion Program operated by Legal Aid of NC; magistrates may continue cases for diversion participation.
• Mecklenburg County: Right-to-Counsel pilot for income-qualifying tenants; magistrates often appoint counsel at first appearance.
• Durham County: Eviction Diversion Program with rental assistance and right-to-counsel; consider mediation referral.
• Forsyth, Guilford, Buncombe Counties: Various eviction-diversion / mediation programs.
• Local Sheriff's offices vary in writ-execution scheduling — verify with the Civil Process Division.

13.9. Eviction fees under § 42-46. Landlord may charge: complaint-filing fee (≤ 15% of monthly rent) when filing, court-appearance fee (≤ 10% of monthly rent) when appearance is necessary, and second-trial fee (≤ 12% of monthly rent) only if a continuance is necessary. These fees are collectible only after a judgment for possession is entered. They cannot be a basis for the underlying nonpayment ground.

13.10. Attorney's fees — § 6-21.2. Despite lease language to the contrary, attorney's fees in residential leases are recoverable only after written notice to the tenant of the intent to seek fees (giving 5 days to pay without fees) and only at 15% of the outstanding balance.

13.11. Prohibited self-help. Even after a judgment for possession, the landlord must wait for the writ. § 42-25.6 violations expose the landlord to actual damages, statutory penalties, attorney's fees, and possible UDTPA treble damages under § 75-1.1.

13.12. Manufactured-home parks. § 42-14.3 requires 60 days' notice for non-renewal. Article 7 has additional protections for manufactured-home tenants.

13.13. Vacation rentals — Chapter 42A. Short-term rentals under 90 days for vacation purposes are not subject to Chapter 42 Articles 3 and 5; use Chapter 42A procedures.

13.14. Subsidized housing. HUD lease addenda override inconsistent state procedure. Verify the addendum's good-cause and notice rules before filing.

14. SOURCES AND REFERENCES

• N.C. Gen. Stat. § 42-3 — Term forfeited for nonpayment of rent.
• N.C. Gen. Stat. § 42-14 — Notice to quit in certain tenancies.
• N.C. Gen. Stat. § 42-25.6 — Manner of ejectment of residential tenants.
• N.C. Gen. Stat. § 42-26 — Tenant holding over may be dispossessed in certain cases.
• N.C. Gen. Stat. § 42-27 to 42-29 — Procedure, summons, and service.
• N.C. Gen. Stat. § 42-30, § 42-32 — Trial; damages.
• N.C. Gen. Stat. § 42-34 — Undertaking on appeal; stay.
• N.C. Gen. Stat. § 42-36.2 — Notice and execution of writ for possession.
• N.C. Gen. Stat. § 42-37.1, § 42-37.2 — Retaliatory eviction defense.
• N.C. Gen. Stat. § 42-42, § 42-43, § 42-44 — RRAA duties and remedies.
• N.C. Gen. Stat. § 42-46 — Late, eviction, and returned-check fee caps.
• N.C. Gen. Stat. §§ 42-50 to 42-56 — Tenant Security Deposit Act.
• N.C. Gen. Stat. §§ 42-59 to 42-63 — Article 7 (Expedited eviction for criminal activity).
• N.C. Gen. Stat. § 7A-210, § 7A-216, § 7A-228 — Small Claims jurisdiction and appeal.
• N.C. Gen. Stat. § 6-21.2 — Attorney's fees in obligation contracts.
• AOC-CVM-201 — Complaint in Summary Ejectment.
• AOC-CVM-202 — Answer to Complaint in Summary Ejectment.
• AOC-CVM-401 — Magistrate's Judgment in Summary Ejectment.
• AOC-CV-100 — Civil Summons (when applicable).
• AOC-G-106 — Petition / affidavit to proceed as indigent.
• 50 U.S.C. § 3951 — Servicemembers Civil Relief Act.
• 15 U.S.C. § 9058 — CARES Act eviction notice (where applicable).
• UNC School of Government, On the Civil Side, summary ejectment series.
• Legal Aid of North Carolina, Eviction Defense Manual (most recent edition).
• North Carolina Judicial Branch, eviction self-help materials.