As part of an ongoing series, the author, a practicing landlord/tenant attorney, discusses 5 of the most recent changes in North Carolina landlord tenant law and the practical affect these changes may impose upon an unsuspecting landlord.

Newsletter #1 - Imminently Dangerous Conditions Pose Problems for Landlords

New Landlord Tenant Statutes for North Carolina - Effective October 1, 2009

By Johnson December 20, 2010

On October 1, 2009, N.C. GEN. STAT. 42-42(a) was changed to add subsection (8), which requires landlords to repair or remedy any "imminently dangerous condition" upon realization or notification via an inspection, walkthrough, a notice, or telephone call.

Under the new Statute, the term "imminently dangerous condition" includes a list of twelve items. These items should be considered as a high priority for the landlord to repair upon discovery or notification. If any of these items are found to be the tenants fault, then the tenant shall be responsible for reimbursement.
  • Unsafe wiring
  • Unsafe flooring or steps
  • Unsafe ceilings or roofs
  • Unsafe chimneys or flues
  • Lack of potable water
  • Lack of operable locks on all doors leading to the outside
  • Broken windows or lack of operable locks on all windows on the ground level
  • Lack of operable heating facilities capable of heating living areas to 65 degrees Fahrenheit when it is 20 degrees Fahrenheit outside from November 1 through March 31
  • Lack of an operable toilet
  • Lack of an operable bathtub or shower
  • Rat infestation as a result of defects in the structure that make the premises not impervious to rodents
  • Excessive standing water, sewage, or flooding problems caused by plumbing leaks or inadequate drainage that contribute to mosquito infestation or mold.
In addition to the changes in the State Statute listed above, all local jurisdictions have ordinances that are often more restrictive than our State Statutes. An example is the City of Charlotte's Housing Code. It provides:

"(e) It shall be unlawful for the owner of a place of habitation that is imminently dangerous to health or safety to collect rent from another person who occupied the place of habitation at the time it became imminently dangerous to health or safety or to permit any other person to begin occupancy of such place of habitation. A place of habitation is imminently dangerous to health or safety if it is in violation of any one of the following minimum standards of fitness established by article III."

Charlotte's Housing Code added four additional Imminently Dangerous Conditions:

  • No safe, continuous, and unobstructed exit from the interior of the building to the exterior at street or grade level, as provided in subsection 11-79(c).
  • No access provided to all rooms within a dwelling unit without passing through a public space, as provided in subsection 11-77(1).
  • No operable smoke detector or alarm, as provided in subsection 11-77(p).
  • Every place of habitation shall comply with the current county health regulations governing carbon monoxide alarms.
Note: In addition to any other penalty imposed by this chapter, any person who violates subsection shall be guilty of a misdemeanor and shall be punished as provided in section 2-21.

Comments: As many of you know, the manner in which a landlord is presented with notice of one or more of these conditions is often through a complaint that has been filed by the tenant with the local Housing Code Enforcement Division. It has been our experience that these types of complaints are almost always brought by tenants who are behind on their rent. To make matters worse, the tenants are often represented by highly skilled Legal Aid attorneys that are employed with legal service organizations that provide advice and direction to the non-paying tenant. Many of you reading this article have had the unpleasant experience of dealing with this type of situation.

If a tenant is successful in proving that the landlord violated either NCGS 42-42(a) or the local Housing Code Ordinance, the Judge may determine that the unpaid rent is abated and in extreme cases, a tenant may be awarded affirmative monetary relief from the landlord.

Example: Tenant A has occupied the dwelling unit for a period of 11 months. Tenant A's monthly rate of rent is $800. Tenant A has failed to pay rent for the two months preceding the Landlord's initiation of a summary ejectment complaint. At trial, Tenant A owes Landlord $1,600 in unpaid rent. Tenant A and his Legal Aid attorney appear at trial and present Landlord with a file stamped counterclaim alleging violations of NCGS 42-42(a) and the local Housing Code Ordinances. At trial, the Magistrate finds that
  • One or more "Imminently Dangerous Conditions" existed within the premises
  • Tenant A notified Landlord of these conditions via a telephone call six months prior to trial
  • Landlord failed to correct the condition following Tenant A's phone call
  • The Magistrate finds that the rent should be abated to $0.00 per month for the period of the tenancy during which the "Imminently Dangerous Condition" existed
  • Landlord is ordered to return the rent paid to Landlord during the six month period following Tenant's phone call ($800 x 4 months Tenant A paid rent = $3,200)
  • Magistrate further finds that the Landlord's conduct was Unfair and Deceptive thereby entitling Tenant A to treble damages and attorney fees ($3,200 x 3 = $9,600 + $1,800 in attorney's fees = $11,400)
  • Magistrate enters judgment against Landlord in favor of Tenant A in the amount of $5,000, which is the jurisdictional limit of Small Claims Court
  • Landlord retains counsel and appeals the matter to District Court (viii) District Court Judge finding are consistent with the Magistrate
  • District Court Judge orders that the Landlord must pay Tenant A the sum of $12,900 + $4,800 towards Tenant A's attorney's fees = $17,700
  • Landlord's attorney's fees total $2,500
  • Total loss to Landlord is $20,200 + $1,600 for the two months Tenant A failed to pay rent = $21,800.
Bright Side: Over the past 18 years, I have tried hundreds of thousands of summary ejectment cases. I have been presented with some extremely difficult counterclaims based upon imminently dangerous conditions existing within the premises. As of the date of this Article, I have managed to avoid ever having a judge or jury award a tenant damages in any case I have tried. This record is primarily due to my client's acceptance of the fact that trying a case against a non-paying tenant, who does not have the ability or willingness to satisfy a judgment, is simply not a very good business decision, especially in cases where an imminently dangerous condition actually existed for any period of time following notice of such by a tenant. I cannot recall any settlement in which my client has agreed to pay more than $1,500 towards a tenant's counterclaim.

Conclusion: Beware of "Imminently Dangerous Conditions". If you are notified by a Tenant that such a condition exists, move quickly to remedy the condition. Document your files with the dates, times, responses, etc.. Once the condition is remedied, have your tenant acknowledge this fact in writing. If you follow these steps, the law will not support a tenant's counterclaim and your attorney will have the necessary evidence to evict your tenant and ensure that your tenant is caused to pay all past due rent.

Proceed to Newletter #2