GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

H	1 

HOUSE BILL 1071

Short Title:  Pay Rent Arrears to Stay Ejectment.	(Public)

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Sponsors: Representative Capps.

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Referred to:  Judiciary I.

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April 21, 1997

A BILL TO BE ENTITLED
AN ACT TO REQUIRE TENANTS TO PAY TO THE CLERK OF COURT THE AMOUNT OF RENT IN ARREARS TO STAY THE EXECUTION OF JUDGMENT FOR SUMMARY EJECTMENT PENDING APPEAL TO DISTRICT COURT AND TO POST A BOND FOR ANY FURTHER APPEALS.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 42-34 reads as rewritten:
"§ 42-34.  Undertaking on appeal and order staying execution.
(a)	Upon appeal to the district court, either party may demand that the case be tried at the first session of the court after the appeal is docketed, but the presiding judge, in his discretion, may first try any pending case in which the rights of the parties or the public demand it.
(b)	It shall be sufficient to stay execution of a judgment for ejectment if the defendant appellant pays any rent in arrears and signs an undertaking that he or she will pay into the office of the clerk of superior court the amount of the contract rent as it becomes due periodically after the judgment was entered and, where applicable, comply with subdivision (c) below.  Any magistrate, clerk, or district court judge shall order stay of execution upon the defendant appellant's paying the rent in arrears and signing the undertaking. If either party disputes the amount of the payment or the due date in the undertaking, the aggrieved party may move for modification of the terms of the undertaking before the clerk of superior court or the district court. Upon such motion and upon notice to all interested parties, the clerk or court shall hold a hearing and determine what modifications, if any, are appropriate.
(c)	In an ejectment action based upon alleged nonpayment of rent where the judgment is entered more than five working days before the day when the next rent will be due under the lease, the appellant shall make an additional undertaking to stay execution pending appeal. Such additional undertaking shall be the payment of the prorated rent for the days between the day that the judgment was entered and the next day when the rent will be due under the lease. 
(c1)	Notwithstanding the provisions of subsections (b) and (c) of this section, an indigent defendant appellant who prosecutes his or her appeal with an in forma pauperis affidavit that meets the requirement of G.S. 1-288 shall not be required to pay rent in arrears or to enter into an additional undertaking to stay execution pending appeal.
(d)	The undertaking by the appellant and the order staying execution may be substantially in the following form:
‘State of North Carolina,
‘County of ................
‘................ , Plaintiff

vs.	Bond to
‘................ , Defendant	Stay Execution
On Appeal to
District Court
‘Now comes the defendant in the above entitled action and respectfully shows the court that judgment for summary ejectment was entered against the defendant and for the plaintiff on the.......... day of ......., 19..., by the Magistrate. Defendant has appealed the judgment to the District Court.
‘Pursuant to the terms of the lease between plaintiff and defendant, defendant is obligated to pay rent in the amount of $...... per ....., due on the ..... day of each ......
‘Where the payment of rent in arrears or an additional undertaking is required by G.S. 42-34(b) or (c), the defendant hereby tenders $...... to the Court as required.
‘Defendant hereby undertakes to pay the periodic rent hereinafter due according to the aforesaid terms of the lease and moves the Court to stay execution on the judgment for summary ejectment until this matter is heard on appeal by the District Court.
                                           ‘This the ........ day of........, 19.....
                                                  ..........................
                                            Defendant
‘Upon execution of the above bond, execution on said judgment for summary ejectment is hereby stayed until the action is heard on appeal in the District Court. If defendant fails to make any rental payment to the clerk's office within five days of the due date, upon application of the plaintiff, the stay of execution shall dissolve and the sheriff may dispossess the defendant.
                                     ‘This ........ day of ........, 19.....
                                                  ..................................
                              Assistant Clerk of Superior Court.'
(e)	Upon application of the plaintiff, the clerk of superior court  shall pay to the plaintiff any amount of the rental payments paid by the defendant into the clerk's office which are not claimed by the defendant in any pleadings.
(f)	If the defendant fails to make a payment within five days of the due date according to the undertaking and order staying execution, the clerk, upon application of the plaintiff, shall issue execution on the judgment for possession.
(g)	When it appears by stipulation executed by all of the parties or by final order of the court that the appeal has been resolved, the  clerk of court shall disburse any accrued moneys of the undertaking remaining in the clerk's office according to the terms of the stipulation or order."
Section 2. Article 3 of Chapter 42 of the General Statutes is amended by adding the following new section:
"§ 42-34.1.  Rent pending execution of judgment; post bond pending appeal.
(a)	If the judgment in district court is against the defendant appellant and the defendant appellant does not appeal the judgment, the defendant appellant shall pay rent to the plaintiff for the time the defendant appellant remains in possession of the premises after the judgment is given. Rent shall be prorated if the judgment is executed before the day rent would become due under the terms of the lease.  The clerk of court shall disperse any rent in arrears paid by the defendant appellant in accordance with a stipulation executed by all parties or, if there is no stipulation, in accordance with the judge's order.
(b)	If the judgment in district court is against the defendant appellant and the defendant appellant appeals the judgment, it shall be sufficient to stay execution of the judgment if the defendant appellant posts a bond as provided in G.S. 1-292.  If the defendant appellant fails to perfect the appeal or the appellate court upholds the judgment of the district court, the execution of the judgment shall proceed.  The clerk of court shall not disperse any rent in arrears paid by the defendant appellant until all appeals have been resolved."
Section 3. This act is effective when it becomes law.