Tenant Rights And Violations

To the Honorable Magistrate: We, **** and Charles ****, respectfully submit this response to the summary ejectment action filed against us by our landlord, William Paul Rountree Sr. We request a thorough evaluation of this case, taking into consideration the landlord's failure to follow legal procedures, his actions throughout our tenancy, and our pursuit of legal remedies for the damages incurred. We firmly believe that eviction is not the appropriate remedy in this situation and seek a fair resolution that respects the rights and needs of both parties. Background and Tenancy History: For nearly ten years, we have resided at * Willeyton Road, Gates, NC *. Upon moving in, the property was in deplorable condition due to neglect and vandalism, rendering it uninhabitable. Despite incomplete repairs and unfulfilled promises from the previous landlord, we invested significant time, effort, and personal funds to make the house habitable. Various fixtures and improvements were made to ensure the property met livable standards. Legal and Procedural Violations by the Landlord: Improper Service of Process and Legal Ramifications: Mr. Rountree's failure to serve the Summons and Complaint according to North Carolina General Statute § *-* is a grave violation of due process. The improper service through regular mail does not meet the legal standards required for eviction proceedings. The lack of proper service is not a trivial matter; it is a significant breach that could invalidate the entire eviction process. Upholding strict compliance with service requirements is crucial in summary ejectment actions. Legal precedents, such as Green v. Kerr and Housing Authority of the City of Durham v. Thorpe, affirm the importance of proper service and the consequences of improper service in eviction proceedings. The improper service of the Summons and Complaint through regular mail constitutes a severe procedural error that undermines the integrity of the eviction process. This violation deprived us of our right to adequate notice and due process. Despite our readiness to defend on June *, the case was continued to June *, which further hinders our ability to address the eviction action promptly and effectively. Landlord's Failure to Provide *-Day Notice and Its Legal Ramifications: Mr. Rountree initiated this summary ejectment action without providing us with the mandatory written *-day "Pay Rent or Quit" notice, as mandated by North Carolina General Statute § *-*. This notice is a fundamental tenant right, providing us with the opportunity to rectify any rent deficiencies before facing eviction. This omission constitutes a substantial procedural error and a clear violation of our rights. North Carolina courts have consistently upheld the necessity of strict compliance with the *-day notice requirement. In the case of Housing Authority of the City of Durham v. Thorpe, the court unequivocally stated that failure to provide this notice is a "fatal defect" that invalidates the eviction. This principle is reinforced in Spence v. GMAC Mortgage Corp., where the court emphasized that proper notice is essential to due process, ensuring tenants are fully informed of their rights and obligations. The absence of this notice is not a mere technicality; it represents a denial of our fundamental right to a fair process. We were not given the opportunity to address the alleged rent deficiency, causing unnecessary stress and hardship for our family. Landlord's Excessive Late Fees and Their Impact on Alleged Rent Owed: Mr. Rountree has repeatedly charged us excessive late fees in violation of North Carolina law. Our monthly rent is $*,*, yet Mr. Rountree has consistently charged us $* for each of the * late payments, totaling $*,*. However, North Carolina General Statute § *-* explicitly states that late fees cannot exceed *% of the monthly rent or $*, whichever is greater. In our case, the maximum allowable late fee would be $*.* per occurrence. This repeated overcharging constitutes an unfair and deceptive trade practice under North Carolina General Statute § *-*.*. As the court affirmed in Friday v. United Dominion Realty Trust, * N.C. App. * (*), excessive late fees can be considered an unfair debt collection practice. Furthermore, in Cotton v. Stanley, * N.C. App. * (*), the court held that excessive late fees violated Chapter * of the North Carolina General Statutes, which prohibits unfair and deceptive trade practices. In another case, In re Investigation of All Storage Centers, LLC, the North Carolina Attorney General obtained a consent judgment against a storage company for charging excessive late fees, demonstrating the state's commitment to enforcing these consumer protection laws. The landlord's blatant disregard for the law in this matter calls into question the validity of the entire amount of rent allegedly owed. We assert that the landlord's willful and repeated violation of the late fee statute renders any late fees he has collected from us null and void. We request that the court consider the total amount of $*,* in illegal late fees as a direct offset against any alleged outstanding rent, effectively reducing or potentially eliminating the landlord's claim. Landlord's Mishandling of Security Deposit and Legal Ramifications: Mr. Rountree demanded and collected a $* security deposit from us upon purchasing the property two years ago. We have the receipt as proof of payment. However, he violated North Carolina General Statute § *-* by failing to inform us in writing within 30 days of the location of the deposit. Additionally, he has not provided us with an itemized list of any deductions from the deposit or the remaining balance, as required by North Carolina General Statute § *-*. According to North Carolina General Statute § *-*, the landlord's willful failure to comply with these deposit requirements voids his right to retain any portion of the tenant's security deposit as otherwise permitted under G.S. *-*. This principle was upheld in Neil v. Kuester Real Estate Services, Inc. (*), where the court clarified that landlords who fail to follow the Tenant Security Deposit Act forfeit their right to retain any portion of the deposit. Furthermore, in Mata v. Powerhouse Square Apartments, LLC (*), the court held that a landlord's failure to provide a written accounting of the security deposit within the required timeframe entitled the tenant to recover the full amount of the deposit, plus attorney's fees. Given Mr. Rountree's failure to follow the security deposit statutes, we argue that he has forfeited his right to retain our security deposit and that the full amount should be returned to us, or credited against any outstanding rent balance. Landlord's Breach of the Implied Warranty of Habitability: Septic System Failure and Rent Abatement Mr. Rountree's failure to address the ongoing and hazardous septic issue constitutes a blatant violation of our rights as tenants and his legal obligations as a landlord. This issue has persisted for over a decade, with both previous and current landlords aware of the problem yet failing to take any meaningful action to resolve it. Upon signing the lease with Mr. Rountree in April *, we discussed the need for repairs to the septic system. When we raised our concerns about the raw sewage, Mr. Rountree's response was dismissive. The broken drain line has resulted in raw sewage pooling in our front yard, creating a significant health hazard. The standing sewage is so bad it stops us using our front yard and the smell is incredibly unpleasant. This issue is clearly visible from the busy road that runs directly in front of our house. It is evident that this problem has been ongoing for a considerable amount of time and that Mr. Rountree has been aware of it since he purchased the property. Mr. Rountree's failure to address this septic issue constitutes a breach of the implied warranty of habitability, as per North Carolina General Statute § *-*(a)(*), which requires landlords to "make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition." The presence of raw sewage in our yard not only renders our home unfit and potentially uninhabitable but also directly violates North Carolina General Statute § 130A-*, which prohibits the discharge of sewage onto the ground surface. This breach is not a mere inconvenience; it significantly impairs our health, safety, and ability to enjoy our home. North Carolina courts have consistently recognized the importance of landlords upholding the implied warranty of habitability, as demonstrated in cases such as Pugh v. Holmes (*), which established the warranty's existence, and Surratt v. Newton (*), where a landlord's failure to repair a leaking septic system was deemed a breach. Legal Ramifications for the Landlord and Our Right to Rent Abatement: Under North Carolina General Statute § *-*(b) and (c), when a landlord breaches the implied warranty of habitability, tenants have the right to pursue rent abatement. We are entitled to a reduction in rent or the right to withhold rent until the habitability issue is resolved, as we are being denied the full use and enjoyment of the property due to the landlord's negligence. In Miller v. C.W. Myers Trading Post, Inc. (*), the court emphasized the landlord's duty to make necessary repairs, including plumbing problems, which further supports our right to rent abatement in this situation. Furthermore, in Dickens v. Puryear (*), the court held that a landlord's failure to address various housing code violations, including a malfunctioning septic system, constituted a constructive eviction. While we are not seeking to vacate the premises at this time, this case demonstrates the severity of the landlord's breach and the potential consequences for their failure to maintain habitable conditions. Acceptance of Partial Payment and Implied Agreement: After the eviction filing on May *, *, we made a partial rent payment of $*,* on June *, *, which exceeded our monthly rent of $*,*. This payment was accompanied by a written proposal for a weekly repayment plan to address any remaining balance. While Mr. Rountree did not explicitly agree to this plan in writing, his acceptance of the payment without protest could be interpreted as an implied agreement to modify the payment terms of the lease. This principle is supported by the legal concept of waiver, where a landlord's actions can be interpreted as intentionally relinquishing their right to enforce certain terms of the lease. In numerous cases, North Carolina courts have held that a landlord's repeated acceptance of late rent payments can constitute a waiver of their right to strictly enforce the lease's late fee provisions or to evict for late payment. For example, in the case of Winston Affordable Housing, LLC v. Roberts, the North Carolina Supreme Court affirmed that the landlord's acceptance of partial payments could, in some cases, constitute a waiver of the right to evict. Financial Hardship and Current Situation: We acknowledge that we have fallen behind on rent due to a family medical crisis, which led to unexpected expenses and loss of income. My mother was diagnosed with cancer in late * and in December * she suffered a severe heart attack. These events resulted in significant medical bills and caregiving responsibilities that put an immense financial strain on our family. However, our situation has now improved significantly. My husband recently got approved for overtime and I just started a new full-time job this month. We are prepared and fully capable of maintaining our financial responsibilities as tenants moving forward. Impact on Family: Losing our home would be an absolute catastrophe for our family. We have three children, Evan (*), Gavin (*), and Makayla (*), and our beloved pets, who are a source of great emotional support for Evan. Evan has autism and relies heavily on routine, predictability, and the familiar comforts of our home. Uprooting him would cause immense emotional distress and could significantly impact his well-being. Additionally, we have nowhere else to go, and losing our home would leave us homeless. The stress and instability of being homeless would take a devastating toll on our family's overall well-being. Conclusion and Request for Equitable Resolution: Given the numerous legal and procedural violations committed by the landlord, the uninhabitable conditions caused by the neglected septic issue, and our demonstrated willingness and ability to fulfill our financial obligations, we respectfully request the following: Dismissal of Eviction: We request that the eviction action be dismissed due to the landlord's procedural errors (improper service, lack of notice, and name discrepancy) and breach of the implied warranty of habitability (N.C. Gen. Stat. § *-*, § *-*, and § *-*). Voiding of Monetary Claims: We assert that the landlord's illegal actions, including excessive late fees and mishandling of our security deposit, warrant not only the dismissal of this eviction but also a complete voiding of all monetary claims against us. We request that any alleged outstanding rent balance be deemed null and void, considering the landlord's potential liability for the return of our $*,* security deposit, the reimbursement of $*,* in excessive late fees, potential treble damages of $*,*, and potential civil penalties under N.C. Gen. Stat. § *-*.*, as well as rent abatement due to the uninhabitable conditions, and the emotional distress our family has faced. New Lease Agreement: In the event that this court dismisses the eviction action and voids all monetary claims, we are willing to enter into a new, legally compliant lease agreement with the landlord, provided that it clearly outlines the rights and responsibilities of both parties, including the landlord's obligation to promptly repair and maintain the septic system. Our foremost desire is to remain in our home, which we have tirelessly worked to improve and maintain for the past decade. We believe that the most just and equitable resolution is the dismissal of this eviction action and the complete resolution of all monetary claims, with no financial penalty to either party, allowing us to continue to provide a safe and stable home for our family. Thank you for your time and consideration. Sincerely, **** **** and Charles **** Potential Financial Ramifications of Landlord's Illegal Actions Mr. Rountree's numerous violations of North Carolina law and his failure to uphold his responsibilities as a landlord have caused us significant financial hardship and severe emotional distress. We believe we are entitled to the following remedies under North Carolina law, which could result in a significant financial liability for the landlord: Recovery of Excessive Late Fees: Full Refund: Mr. Rountree charged us $* for each of the * late rent payments, totaling $*,* in illegal fees. We are entitled to a full refund of these overcharged late fees. Treble Damages: Under North Carolina General Statute § *-*, we are entitled to recover three times the amount of the illegal late fees paid ($*,*), totaling $*,* in treble damages. Civil Penalties: Additionally, N.C. Gen. Stat. § *-*.* allows for civil penalties of no less than $* and no more than $*,* for each violation of the Unfair and Deceptive Trade Practices Act. Given the * instances of excessive late fees, this could cause a civil penalty ranging from $*,* ($* x *) to $*,* ($*,* x *). Return of Security Deposit: Full Refund: Due to the landlord's failure to follow the security deposit notification requirements of N.C. Gen. Stat. § *-*, he has forfeited his right to retain any portion of the $*.* security deposit under N.C. Gen. Stat. § *-*. Rent Abatement Potential Rent Reduction: Mr. Rountree’s breach of the implied warranty of habitability due to the unresolved septic issue entitles us to a reduction in rent until the issue is resolved. The specific amount would depend on the duration of the issue and its impact on our use and enjoyment of the property. *% Abatement: A conservative estimate of *% rent abatement over 26 months (the duration of Mr. Rountree's ownership) would amount to $*,*. *% Abatement: A more substantial abatement of *% over 26 months, reflecting the severity of the septic issue, would amount to $*,*. Additional Damages for Emotional Distress: Mr. Rountree’s actions and the stress of this eviction process have caused significant emotional distress to multiple members of our family.I have experienced physical manifestations of this stress, including hair loss, severe stomach upset, insomnia, anxiety, headaches, and nausea. My pre-existing mental health condition has been significantly exacerbated by this situation. My husband and oldest child, Makayla, have also suffered from severe anxiety, sleep disturbances, and emotional distress. Makayla's pre-existing mental health condition has also been exacerbated by the stress and uncertainty surrounding this situation.Thankfully, our younger children, Gavin and Evan, are unaware of the situation, as we are deeply concerned about the impact this stress would have on Evan, given his autism. We feel we could be entitled to $*,* to $*,* each. Total Potential Liability for Landlord: Based on the above calculations, Mr. Rountree’s potential liability could range from: Minimum: $*,* (refund of late fees and security deposit, plus *% rent abatement) Maximum: Well over $*,* (including treble damages, maximum civil penalties, maximum rent abatement, and potential damages for emotional distress) The case of Housing Authority of the city of Greensboro versus Farley emphasizes the critical nature of adhering to the procedural requirements and eviction proceedings mirroring our argument against the improper service of summons. Furthermore Jones versus Harrelson and Smith contractors underscores the landlord's obligation to maintain habitable living conditions directly pertinent to our substantial Investments and property repairs. These cases alongside the sided violations of North Carolina General statutes *-* *-* and * - *.* underscore the procedural messed ups and legal oversights by Mr. Roundtree. We assert these references are crucial for a fair evaluation of our case. Unjustified Continuance and Impact on Tenants: On June *, *, we appeared in court for the scheduled hearing, prepared to present our case and defend against the eviction. However, the magistrate, without a request from either party and without providing a clear reason, chose to continue the case until June *, *. This *-day delay has caused significant hardship for our family, exacerbating our stress and anxiety. We are concerned that this continuance, which seems to go against the purpose of summary ejectment as a swift process, was granted to provide the landlord with an unfair advantage. We respectfully request that the court expedite the hearing and issue a ruling promptly, taking into consideration the negative impact this delay has had on our family. The stress of my mother's illness and the financial strain it placed on our family was compounded by the landlord's lack of compassion. When we explained our situation to Mr. Rountree, he callously stated that our personal hardships only became a problem when they "started affecting his money." This callous disregard for our well-being added another layer of emotional distress to an already difficult situation. Landlord's Disregard for Tenant Well-being and Habitability: Despite the severe and ongoing habitability issue caused by the broken septic system, Mr. Rountree has demonstrated a callous disregard for our family's health and well-being. He has shown more concern for receiving rent payments than addressing the hazardous conditions on his property, which have persisted for over a decade. Furthermore, Mr. Rountree seems to prioritize his financial interests over fulfilling his legal obligations as a landlord. His demands for strict adherence to the lease terms regarding carpet cleaning and pest control, while ignoring the significant health hazard posed by the septic issue, demonstrate a misplaced focus on trivial matters at the expense of our family's safety and welfare. Emotional Distress and Landlord's Disregard for Tenant Well-being: The stress of this eviction process, compounded by Mr. Rountree's actions and statements, has caused significant emotional distress to our family. I, **** ****, have experienced physical manifestations of this stress, including hair loss, severe stomach upset, insomnia, anxiety, headaches, and nausea. My pre-existing mental health condition has been exacerbated by this situation. My husband and oldest daughter, Makayla, have also suffered from severe anxiety, sleep disturbances, and emotional distress as a direct result of the landlord's actions and the looming threat of eviction. My heart is racing right now, and my skin feels like it's on fire from the stress. Makayla's pre-existing mental health condition has also been worsened by this ordeal. The stress of my mother's illness and the financial strain it placed on our family was compounded by the landlord's lack of compassion. When we explained our situation to Mr. Rountree, he callously stated that our personal hardships only became a problem when they "started affecting his money." This callous disregard for our well-being added another layer of emotional distress to an already difficult situation. Despite the severe and ongoing habitability issue caused by the broken septic system, Mr. Rountree has demonstrated a callous disregard for our family's health and well-being. He has shown more concern for receiving rent payments than addressing the hazardous conditions on his property, which have persisted for over a decade. Furthermore, Mr. Rountree seems to prioritize his financial interests over fulfilling his legal obligations as a landlord. His demands for strict adherence to the lease terms regarding carpet cleaning and pest control, while ignoring the significant health hazard posed by the septic issue, demonstrate a misplaced focus on trivial matters at the expense of our family's safety and welfare. We believe that this pattern of behavior demonstrates a disregard for tenant rights and a prioritization of profit over the well-being of the individuals living in his property. This should be taken into consideration by the court when evaluating the overall fairness and equity of the eviction action and determining appropriate remedies, including potential compensation for emotional distress. List of General Statutes and Laws Used: North Carolina General Statute § *-* North Carolina General Statute § *-* North Carolina General Statute § *-* North Carolina General Statute § *-*.* North Carolina General Statute § *-* North Carolina General Statute § *-* North Carolina General Statute § *-* North Carolina General Statute § *-*(a)(*) North Carolina General Statute § 130A-* North Carolina General Statute § *-*(b) and (c) North Carolina General Statute § *-* North Carolina General Statute § *-*.* List of Cases Used: Green v. Kerr, * N.C. App. * (*) Housing Authority of the City of Durham v. Thorpe Williamson v. Williamson, * N.C. * (*) Spence v. GMAC Mortgage Corp. Friday v. United Dominion Realty Trust, * N.C. App. * (*) Cotton v. Stanley, * N.C. App. * (*) In re Investigation of All Storage Centers, LLC Neil v. Kuester Real Estate Services, Inc. (*) Mata v. Powerhouse Square Apartments, LLC (*) Pugh v. Holmes (*) Surratt v. Newton (*) Miller v. C.W. Myers Trading Post, Inc. (*) Dickens v. Puryear (*) Winston Affordable Housing, LLC v. Roberts

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