North Carolina General Statutes 42-64. Affirmative defense or exemption to a complete eviction
(a) Affirmative Defense. – The court shall refrain from ordering the complete eviction of a tenant pursuant to N.C. Gen. Stat. § 42-63(a) where the tenant has established that the tenant was not involved in the criminal activity and that:
(1) The tenant did not know or have reason to know that criminal activity was occurring or would likely occur on or within the individual rental unit, that the individual rental unit was used in any way in furtherance of or to promote criminal activity, or that any member of the tenant’s household or any guest has engaged in criminal activity on or in the immediate vicinity of any portion of the entire premises; or
Terms Used In North Carolina General Statutes 42-64
- Complete eviction: means the eviction and removal of a tenant and all members of the tenant's household. See North Carolina General Statutes 42-59
- Criminal activity: means (i) activity that would constitute a violation of N. See North Carolina General Statutes 42-59
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Guest: means any natural person who has been given express or implied permission by a tenant, a member of the tenant's household, or another guest of the tenant to enter an individual rental unit or any portion of the entire premises. See North Carolina General Statutes 42-59
- Individual rental unit: means an apartment or individual dwelling or accommodation which is leased to a particular tenant, whether or not it is used or occupied or intended to be used or occupied by a single family or household. See North Carolina General Statutes 42-59
- Landlord: means a person, entity, corporation, or governmental authority or agency who or which owns, operates, or manages any leased residential premises. See North Carolina General Statutes 42-59
- Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- leased residential premises: means a house, building, mobile home, or apartment, whether publicly or privately owned, which is leased for residential purposes. See North Carolina General Statutes 42-59
- Partial eviction: means the eviction and removal of specified persons from a leased residential premises. See North Carolina General Statutes 42-59
- Plaintiff: The person who files the complaint in a civil lawsuit.
- Tenant: means any natural person or entity who is a named party or signatory to a lease or rental agreement, and who occupies, resides in, or has a legal right to possess and use an individual rental unit. See North Carolina General Statutes 42-59
(2) The tenant had done everything that could reasonably be expected under the circumstances to prevent the commission of the criminal activity, such as requesting the landlord to remove the offending household member’s name from the lease, reporting prior criminal activity to appropriate law enforcement authorities, seeking assistance from social service or counseling agencies, denying permission, if feasible, for the offending household member to reside in the unit, or seeking assistance from church or religious organizations.
Notwithstanding the court’s denial of eviction of the tenant, if the plaintiff has proven that an evictable offense under N.C. Gen. Stat. § 42-63 was committed by someone other than the tenant, the court shall order such other relief as the court deems appropriate to protect the interests of the landlord and neighbors of the tenant, including the partial eviction of the culpable household members pursuant to N.C. Gen. Stat. § 42-63(b) and conditional eviction orders under N.C. Gen. Stat. § 42-63(c).
(b) Subsequent Affirmative Defense to a Complete Eviction. – The affirmative defense set forth in subsection (a) of this section shall not be available to a tenant in a subsequent action brought pursuant to this Article unless the tenant can establish by clear and convincing evidence that no reasonable person could have foreseen the occurrence of the subsequent criminal activity or that the tenant had done everything reasonably expected under the circumstances to prevent the commission of the second criminal activity.
(c) Exemption. – Where the grounds for a complete eviction have been established, the court shall order the eviction of the tenant unless, taking into account the circumstances of the criminal activity and the condition of the tenant, the court is clearly convinced that immediate eviction or removal would be a serious injustice, the prevention of which overrides the need to protect the rights, safety, and health of the other tenants and residents of the leased residential premises. The burden of proof for the exemption set forth shall be by clear and convincing evidence. (1995, c. 419, s. 1.)