Short Answer

In North Carolina, you must first end any month-to-month or week-to-week arrangement with a written notice (generally at least 7 days for month-to-month and 2 days for week-to-week). If the occupants do not leave, file a Summary Ejectment in Small Claims Court using the Magistrate Summons and Complaint in Summary Ejectment. The sheriff serves the papers; if personal service fails, posting and mailing is allowed. After a judgment and the 10-day appeal window, the sheriff enforces a writ of possession and handles the set-out of property.

Understanding the Problem

In North Carolina, can a co-owner require occupants living at the property without a formal lease to leave, and what notices and court papers are needed to do it lawfully? One key fact here is that a deed transfer is expected in the coming weeks, so timing the notice, filing, and any sheriff’s set-out matters.

Apply the Law

North Carolina uses a fast-track process called “summary ejectment” in Small Claims Court for most landlord-tenant evictions. To use it, there must be a landlord-tenant or similar right-to-possess arrangement. If occupants are periodic tenants (for example, month-to-month), the owner must first terminate the tenancy with proper written notice before filing. The case is filed in the county where the property is located, heard by a magistrate, and can be appealed within 10 days. If the owner wins and there is no appeal, the court issues a writ of possession that the sheriff executes, including removal and handling of personal property.

Key Requirements

• Right relationship: Summary ejectment generally requires a landlord-tenant or consent-based occupancy. If an occupant is a co-owner, summary ejectment is not available.
• Termination notice: End a periodic tenancy in writing before filing (typically at least 7 days for month-to-month, 2 days for week-to-week; longer for year-to-year).
• File in the right forum: File a Complaint in Summary Ejectment (AOC-CVM-201) and Magistrate Summons (AOC-CVM-100) with the Clerk of Superior Court in the county where the property sits.
• Service of process: Sheriff serves; if personal service fails after due diligence, posting at the premises plus mailing is permitted.
• Hearing, appeal, and writ: Magistrate hearing is quick; a party has 10 days to appeal to District Court. If not appealed, request a Writ of Possession. The sheriff executes the writ and manages property set-out/storage under state law.
• Military status: If a defendant does not appear, the court typically requires a Servicemembers Civil Relief Act declaration (AOC-G-250) before entering judgment.

What the Statutes Say

• North Carolina Gen. Stat. § 42-26 (Grounds for summary ejectment) – Lists legal grounds to remove a tenant (e.g., holdover, breach).
• North Carolina Gen. Stat. § 42-29 (Service of process) – Allows service by sheriff; if unsuccessful, posting and mailing are allowed.
• North Carolina Gen. Stat. § 42-36.2 (Writ of possession; execution) – Sheriff executes the writ and removes property.
• North Carolina Gen. Stat. § 42-36.3 (Storage/disposition of property) – Rules for handling property removed under a writ.

Analysis

Apply the Rule to the Facts: Because the occupants live there without a formal lease, first confirm whether they are periodic tenants or simply occupants by permission. If they are month-to-month, deliver written notice ending the tenancy at least 7 days before the termination date; if week-to-week, give at least 2 days. If they do not vacate, file a summary ejectment in the county where the property is located. Given the expected deed transfer in weeks, serve notice now to start the clock, file promptly if they stay, and plan for sheriff execution after the 10-day appeal period.

Process & Timing

1. Who files: The property owner/landlord (or co-owner if a landlord-tenant relationship exists). Where: Small Claims Division before a Magistrate via the Clerk of Superior Court in the county where the property is located. What: File AOC-CVM-201 (Complaint in Summary Ejectment) and AOC-CVM-100 (Magistrate Summons); attach your written termination notice. Include an SCRA declaration (AOC-G-250) if a default is possible. When: Only after delivering the required written termination notice (e.g., at least 7 days for month-to-month).
2. The clerk issues the summons for sheriff service. If personal service fails after due diligence, the sheriff may post the summons and complaint at the property and mail a copy. A small claims hearing is typically set quickly (often within 1–2 weeks, but county timelines vary).
3. If you win, the defendant has 10 days to appeal to District Court. If no appeal, request a Writ of Possession. The sheriff schedules and executes the writ, removes occupants, and handles set-out/storage of personal property under state rules. You can coordinate the set-out date with your walkthrough plan.

Exceptions & Pitfalls

• Co-owner exception: You cannot evict a co-owner by summary ejectment; consider a partition action or a civil ejectment in the appropriate court.
• No self-help: Do not change locks, shut off utilities, or remove property without a court order and sheriff involvement; doing so can create liability.
• Service defects: Make sure the sheriff can identify and serve the correct occupants; improper service can delay or derail the case.
• SCRA issues: If an occupant is on active duty and does not appear, the court generally requires a military-status affidavit and may appoint counsel or stay the case.
• Property and vehicles: The sheriff manages personal property removal during the writ. Disposing of vehicles may require separate towing/title procedures; coordinate with the sheriff and follow motor-vehicle notice rules.
• Timing vs. deed transfer: Because appeals add at least 10 days, start notice and filing early if you need possession before closing.

Talk to a Partition Action Attorney

If you’re dealing with unwanted occupants at a co-owned North Carolina property and need to coordinate notices, filings, and a sheriff’s set-out around a pending deed transfer, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.