Data behind the stories
The Eviction Process
Evictions are forced moves that can be either informal or formal. This section presents the journey of eviction for tenants renting in the private market.
Informal evictions are forced moves that do not go through the court system. Landlords might pay tenants a few hundred dollars to move, remove doors, or engage in any other variety of activities that forces the tenant to leave forcefully (though evidence of these acts are not as evident in Durham as they are in other cities). Sometimes landlords would meet with the tenant to let them know they’re considering filing an eviction, and instead of leaving that mark on the tenant’s record, the tenant is asked to move. Statistics on informal evictions are limited because these types of moves often lack any legal documentation. A 2016 survey of low-income Milwaukee tenants found that 48% of all forced moves were due to informal evictions. For comparison, formal evictions that occurred from a court-ordered judgment made up 24% of forced moves, while those that occurred due to foreclosure made up 28% of forced moves.
Formal Evictions: Summary Ejectment
Formal evictions are done through summary ejectment, but not all summary ejectment filings result in an eviction. Tenants, landlords, and sometimes attorneys, could settle the case outside of the magistrate.
In North Carolina, there are 4 reasons why a landlord can legally file for a summary ejectment:
Non-payment of rent: not paying rent after a 10-day grace period
Hold over: the lease ends, but the tenant chooses to stay
Breach of contract: The tenant violates the terms of the lease
Criminal activity: the tenant engages in criminal activity
Most summary ejectment filings are for non-payment of rent, which tends to be what dominates the conversations about eviction. For a smaller, unmeasured percentage of cases, tenants can be evicted for staying in the property after the landlord provided a 30-day notice for moving, or if they breached an aspect of the contract.
With no-fault evictions, landlords tend to file summary ejectment as hold over and breach of lease. The two portraits featured in the photo stories outline cases where the summary ejectment was filed for hold over.
When a landlord takes an eviction to court, the burden of proof falls on the landlord. But housing attorneys like Brent Ducharme believe the threshold for proof is so low that the burden of proof “might as well be on the tenant,” as Ducharme shared. The court only cares about legal status as evidence—meaning that they will review if rent was paid and if the landlord or tenant engaged in any activities that met the lease agreements or state law. If the tenant shares that they have been hospitalized on the month they fell behind on rent, or experienced any number of personal health hardships, there is no exception in state law that consider extraneous health circumstances. The tenant is always responsible.
The flowchart above showcases the pathway to eviction developed by the Budget and Tax Center of the North Carolina Justice Center. Whether or not the tenant was at fault for any of the four reasons for summary ejectment, the process is the same.
However, the figure requires a couple of corrections based on a review with Legal Aid attorneys. After a case is heard at small claims court, the tenant can file an appeal that takes the case to District Court (not shown in the figure). If a tenant were to file an appeal, the tenant can petition to proceed as indigent, which allows the court to waive the $150 application fee. The appeal also enables tenants to make manageable rent bond (a security deposit)—and for tenants considered indigent, the rent bod is lowered and prorated.
The final item in the eviction process flowchart notes that the tenant has 5-7 days to retrieve their belongings, but sometimes the tenant will only have one day to retrieve their belongings. Landlords might choose this option to avoid triggering a temporary stay that indicates the tenant is allowed to remain at the property.
An Eviction Record: Whether Evicted or Not
If a landlord proves the case and the tenant is evicted, the tenant will have an eviction record on their credit history that remains there for up to seven years. Most of the time, a tenant who is evicted could also lose their Housing Choice Voucher (referred to as Section 8 voucher throughout this website) depending on the reason for the eviction, especially if it is due to a violation in the lease. The Durham Housing Authority decides whether the reason for an eviction affects a tenant’s ability to keep their voucher. For example, if the Housing Authority believes a tenant was evicted because the property owner wanted to sell their property, the tenant is encouraged to contact Housing Authority to ensure they do not lose their voucher.
If a tenant proves their case and they are not evicted, the County cannot guarantee that an eviction judgment from small claims court would be erased even if the case was taken to District Court. Often, a tenant’s legal representative can ask small claims court to submit an order to remove the small claims summary ejectment filing from the tenant’s record. There is no mechanism to automatically do this. In one of the tenant portraits in Part V, a tenant who won her case experienced the consequences of an incidental record. According to Ducharme who works at the Durham Eviction Diversion Program, the City’s Clerk Office characterizes this issue as a “computer issue” and that they do not have a means to “destroy a judgment.”
To battle these remaining records for tenants who have won their case, attorneys recommend tenants to keep copies of the court outcomes.