Eviction & Unauthorized Practice of Law.

I was evicted in October, and am now in a Trial De Novo appeal where I have stated several defenses based upon statutory as well as common law, but none of them will work in a dispository motion. I therefore have to wait until the actual trial.

I have recently discovered a new way to defeat the eviction. The owener of the property lives out of state and uses a Real Estate firm to act as a Leasing Agent. The origional complaint in magistrates court named only the Real Estate Firm as plaintiff, identified no counsel for plaintiff, and the complaint was signed by one of the firm's property managers (not an attorney).

According to the North Carolina Real Estate Manual, published by the Real Estate Commission, a leasing agent is supposed to name the property owner as plaintiff and an agent for the owner can sign the pleading on his behalf because NC law has an exemption only for eviction complaints allowing an agent to sign a pleading for the owner. The owner need not appear in court, and the leasing agent can testify to personal knowledge of a tenant's default.

The method prescribed by the NC Real Estate Commission works in because the owner of the property is a pro per litigant, NC law allows the agent to sign the pleading, NC law does not require the owner to appear, and the agent only testifies to personal knowledge without representing anyone. However, the Real Estate Firm can not be pro per as they are a corporation.

Unfortunately, I did not figure this out until after I had filed my answer. My question is, even though unauthorized practice of law is not a defense in my pleading, can I still use some other method (ie. motion for sanctions) to quash the eviction?

What good will this do? You are already evicted and living somewhere else. The eviction against you is already on record with the courts. Even if you were to win this case, the eviction case would still be listed and would be marked as overturned. (They don't remove all records of it from the court files.) That won't help you in your search for new housing. Most LLs look no further than the eviction filings. They don't care who won or lost the case. The fact that a LL had to go to the extreme step of filing an eviction against you would be enough for them to deny you housing. (No report need be made to you on this denial as court records are public records and are available to anyone without your signed consent. You are not entitled to a denial letter based on public info, only on credit reports or purchased info.)

The owner's manager is a law firm. You will be facing the expertise of the entire firm. The loophole you found was a simple mistake probably made by a law clerk at the managing law firm. And since you never explained why you were unjustly evicted, one can only surmise that it was not unjust. (Otherwise, wouldn't you have said that you shouldn't have been evicted, that they had no basis to evict you, or profess your innocence in some manner?) You are simply looking for some way out of it. Since a de novo trial only reviews the facts of the case, if you were evicted on a correct basis, you can't win. No doubt they will just refile the eviction again with the correct information should you prevail. (Remember since this is a civil case and you are not on trial and can't be convicted, double jeopardy doesn't apply.) So what can you gain from this mistake in the paperwork?

I didn't proclaim that I am inosent because that is irelevant to this issue; however if you want that here it is.

In March 2007 I moved in to the property and at the time of signing the lease I asked that 2 broken light fixtures (broken as it dangling from electrical wire) be repaired. In Apr 2007 I discovered that the water heater was installed incorrectly and was a potential fire hazard. I gave the landlord written notice of both these problems in Apr07. Several verbal requests were subsiquently made but were ignored. In Feb07, subsiquent to a maintinance request we recieved a letter from the leasing agent threatening to complain to the health department if we did not stop piling garbadge in our back yard (our neighbors can testify that the complaint had no trouth to it). On 3Jun08 I sent a letter demanding repairs, on 9Jun08 I got an eviction notice demanding payment of rent in full for Jun08 or I would be evictied, however I can prove that I paid the Jun08 rent on 30May08 and it was already deposited in their bank account.

I filed a lawsuit for violation of the Residential Rental Agreements Act & Unfair and Deceptive Trade Practices in Jun08 which is still pending. The landlord did fix all deficiencies as of 2Jul08 (after the county inspections Dept. ordered them to do so).

I am claiming the present action to be retaliatory eviction under the following grounds:

1) I paid rent on time every month until oct08. I failed to pay rent that month because landlord has been using something like a scotched earth defense and is trying to bankrupt me out of litigation. Eviction is equitable relief and they are precluded from it by the unclean hands doctrine.

2) I billed them in Oct08 for debt that landlord legaly owes me and charged their rent against it. This type of defense worked in Pener v. US Postal Service (An eviction against USPS from the Burlington NC post office).

3) I have found common law examples of successful retaliatory eviction attempts where the NC Court of Appeals has held that when the landlord contributes to the default, the landlord can not use the default as a defense for retaliatory eviction, although they are still entitled to recovery of unpaid rent.

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WHAT GOOD WILL IT DO ME: I am not trying to re-enter the property, they have already tried to retaliatory evict me 2 times, I don't want to make it 3. NC law entitles me to recovery of the cost of the eviction if the eviction is quashed for any reason (including cost of storing my property and living in a hotel).

Back to the original question. Can I quash the eviction using unauthorized practice of law despite the fact that I did not name it as a defense in the pleading.

OK, I've answered my own question, so I decided to post it here just in case it might be helpful to someone else.

“in enacting our small claims court system . . . the General Assembly apparently intended . . . to provide our citizens, corporate as well as individual, with an expedient, inexpensive, speedy forum in which they can process litigation involving small sums without obtaining a lawyer.” Duke Power Co. v. Daniels, 86 N.C. App. 469, 472, 358 S.E.2d 87, 89 (1987)

So in the State of North Carolina it's acceptable for a corporation to appear pro per in Magistrates Court. They retained an attorney upon my de novo appeal, if they had not done that then I would have a basis for sanctions, but as things are I do not.

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That said, I know for a fact that in some states corporations are never allowed to appear pro per, so the theory I have stated here would work if your jurisdiction allows it.

So, you failed to pay rent and tried to withhold rent for the month of October. You can only do this if you deposit the rent with the clerk of court for a habitability issue. You did not deposit rent with the clerk of court. Any other type of rent withholding puts you at risk for eviction as you have found out. Depositing the rent with the clerk of court or in the special account, on time, allows you to stay without paying the rent to the LL. The clerk holds your rent until the LL makes the required repairs. You could have easily done this, forcing your LL to make the repairs you needed.

It appears you attempted to repair and deduct (although, you don't list any repairs, only "debt that landlord legaly owes me"). Repair and deduct only works if you do repairs the LL fails to do, then deduct the cost of the repairs from the rent (after notifying the LL in writing of the problems and allowing him time to make repairs). You did notify him in writing and gave sufficient time to make those repairs. But you didn't make the repairs yourself or hire someone to do them. You can't use repair and deduct for other debt a LL owes you, only for repairs. (The case you cite is a commercial eviction, not a residential one. Those don't fall under the same laws are LL-Tenant statutes.) Also, your state has no statute on Repair & Deduct. You can't do it there.

Further, NC statutes on retaliation disallows a LL to evict you for 12 months after you file a complaint to the LL, join a tenant's association, or exercise your legal rights. Your initial complaint about these problems was in April of 07 and you were not evicted until at least 12 months after that. The problems were fixed peior to your eviction. Also, you were not evicted for exercising your legal rights, but because you didn't do so. Had you followed your state law for rent withholding, you could have done so in the correct manner without consequence. But you failed to do so. Next time, please read and understand the law and your rights under your state law before you attempt to take action. Good luck.