Spinks v. Taylor , 47 N.C. App. 68 ( 1980 )

266 S.E.2d 857 (1980)

Cassaundra SPINKS
v.
John R. TAYLOR, Jr., Trading as Taylor Realty.
Dorothy L. RICHARDSON
v.
JOHN R. TAYLOR COMPANY, INC.

No. 7918DC1063.

Court of Appeals of North Carolina.

June 3, 1980.

Central Carolina Legal Services by Robert S. Payne, and Ling & Farran by Jeffery P. Farran, Greensboro, for plaintiffs-appellants.

Smith, Moore, Smith, Schell & Hunter by Bynum M. Hunter, Jeri L. Whitfield and Suzanne Reynolds, Greensboro, for defendant-appellee.

HARRY C. MARTIN, Judge.

Plaintiffs contend the self-help eviction procedures of defendant are contrary to the law of North Carolina and, therefore, the court erred in denying their motions for summary judgment and in allowing summary judgment for defendant.

They first argue defendant's agents who carry out the padlocking procedures are "debt collectors" as defined by N.C.G.S. 75-50(3) and therefore bound by the provisions of Article 2 of Chapter 75. We do not decide whether defendant's agents are "debt collectors" within the meaning of the statute because the record fails to show any violations of Article 2 by them. N.C.G.S. 75-51(1) prohibits the use or threat of violence or illegal means to cause harm to any person, his reputation, or his property. Plaintiffs make no allegations of violence by defendant's agents and, as will be hereinafter discussed, the padlocking procedures are not illegal. Nor has there been any representation of seizure of property as proscribed by N.C.G.S. 75-51(6), or threat of illegal action prohibited by N.C.G.S. 75-51(8).

N.C.G.S. 75-54(4) and (5) prohibit the use of false representations in efforts to collect debts and the use of paper writings that simulate documents authorized or issued by a court or other legal authority. Plaintiffs argue defendant's use of the words "Legal Notice" on the notice of padlocking violates this statute. We do not agree. The notice used by defendant is well within the bounds established in State v. Watts, 38 N.C.App. 561, 248 S.E.2d 354 (1978), disc.rev.denied, 296 N.C. 414, 251 S.E.2d 473 (1979). There the notice to vacate was drawn in the form of the usual notice used in court proceedings except for the absence of a case heading and docket number. The Court in Watts held it was obvious the notice was issued not by a court official but by the agent of the owner. The padlock notice here at issue reads:

GUILFORD COUNTY PADLOCKED APARTMENT NORTH CAROLINA LEGAL NOTICE

This apartment has been padlocked for nonpayment of rent. ANYONE ENTERING THE APARTMENT IS A TRESPASSER AND WILL BE PROSECUTED.

The previous resident may regain legal possession of the apartment by immediately paying the past due rent.

The previous resident can recover any personal property left in the apartment by immediately contacting the resident manager.

The notice is clearly not a simulated court notice.

Plaintiffs urge us to find N.C.G.S. 75-1.1 applicable to the facts of this case, relying upon Love v. Pressley, 34 N.C.App. 503, 239 S.E.2d 574 (1977), disc.rev.denied, 294 N.C. 441, 241 S.E.2d 843 (1978). In Love, the tenants were not in default on their lease and were in rightful possession of the premises. In our case, plaintiffs do not deny that they were in default on their rent. Love is distinguishable from this case and we find no merit in plaintiffs' arguments concerning the applicability of N.C.G.S. 75-1.1.

Next, plaintiffs argue that paragraph 19 of the lease, the termination provision, is unconscionable and therefore unenforceable as violative of public policy. The law argued by plaintiffs on unconscionable contracts is accurate but has no application to the facts of plaintiffs' cases. Here, it is not the padlocking procedures that deprive plaintiffs of a place to live, but their failure to pay the rent. Plaintiffs offer no reason for failing to pay their rent. In North Carolina a tenant cannot retain possession of premises without paying rent, even to protest alleged wrongful acts of the landlord in providing substandard conditions in the premises. Thompson v. Shoemaker, 7 N.C.App. 687, 173 S.E.2d 627 (1970). We must reject plaintiffs' argument that paragraph 19 is unconscionable and unenforceable.

Last, plaintiffs contend the public policy and law of North Carolina prevent remedies of self-help as used by defendant. Obviously, a landlord cannot without judicial process seize and sell a tenant's personal property to collect delinquent rent. Dalgleish v. Grandy, 1 N.C. 249 (1800). There has been no effort by defendant here to seize plaintiffs' personal property for the purpose of collecting past-due rent, either by sale of the property or by holding it till the rent was paid. A landlord can lawfully exercise peaceful, nonviolent self-help in North Carolina to regain possession of leased premises where the tenant fails to pay rent. Mosseller v. Deaver, 106 N.C. 494, 11 S.E. 529 (1890). In Mosseller, defendants had used force to eject plaintiff from possession, and plaintiff sued for damages. The trial court instructed the jury that defendants had the right to use force to remove plaintiff, but no more force than was necessary. On appeal, the Supreme Court ordered a new trial, holding the instruction to be error and stating: "[W]e cannot approve of the instruction given, as it is not only opposed to the public policy, which requires the owner to use peaceful means or resort to the courts in order to regain his possession, . . . ." Id. at 495, 11 S.E. at 530 (emphasis added). Thus, while North Carolina rejects the use of force to regain possession, peaceful means by an owner may be utilized. Plaintiffs do not contend defendant used force to regain possession of the premises.

North Carolina has held the changing of locks on a door to keep out an occupant is not a forcible entry within the meaning of the criminal laws. For there to be a forcible entry there must be some force or violence in excess of a simple trespass. State v. Leary, 136 N.C. 578, 48 S.E. 570 (1904). The placing of the padlock by defendant is the basic act that deprived plaintiffs of possession. Under Leary, this appears to be a peaceful means.

We believe that under the common law of North Carolina when a tenant fails to pay rent and to vacate leased property, the owner may use peaceful means to regain possession of the property. Upon failure to regain possession thereby, he may resort to the courts. Mosseller, supra. This is in accord with other common law jurisdictions. See Krasner v. Gurley, 252 Ala. 235, 40 So. 2d 328 (1949); Calef v. Jesswein, 93 Ind. App. 514, 176 N.E. 632 (1931); Paddock v. Clay, 138 Mont. 541, 357 P.2d 1 (1960); Liberty Ind. Park Corp. v. Protective Pkg. Corp., 71 Misc. 2d 116, 335 N.Y.S.2d 333 (1972), aff'd, App.Div., 351 N.Y.S.2d 944 (1974). The rule is succinctly stated in 50 Am.Jur.2d Landlord and Tenant § 1220 (1970), as follows:

According to many cases, where a landlord is wrongfully held out of possession by an overstaying tenant, he may, when the opportunity presents itself, gain possession of the leased premises by peaceable means, and necessity for recourse to legal process exists only where peaceable means fail and force would be necessary; thus, where the tenant's right of possession has terminated, the landlord has the right to re-enter the leased premises peaceably, as where the tenant is absent.

In a case similar to the one sub judice, the Missouri Supreme Court in Chappee v. Lubrite Refining Co., 337 Mo. 791, 85 S.W.2d 1034, 101 A.L.R. 471 (1935), held a tenant whose lease had been rightfully terminated is not entitled to recover damages for the act of the lessor in peaceably taking possession of the premises, although against the lessee's will.

In addition, the modern policy of diverting conflicts away from the courts supports lawful self-help remedies. This theory, utilizing arbitration, "citizen courts," referees, traffic offense commissions, debt-counselling service, tax conferences, and other non-court methods of resolving disputes, recognizes that the courts cannot resolve every dispute between persons or between persons and the state. Proper and peaceful self-help remedies by landlords have a place in this scheme. Where a dispute can be properly resolved in a peaceful manner, one is not required to seek the services of the courts. Here, plaintiffs do not deny that they were delinquent in their rent payments and that defendant was entitled to possession of the premises. They only insist defendant could not use peaceful self-help to regain possession of the premises and that he must resort to the courts for this purpose. Under the facts of this case, we reject plaintiffs' argument.

The court properly denied plaintiffs' motions for summary judgment and properly granted summary judgment for defendant. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971).

Affirmed.

VAUGHN and CLARK, JJ., concur.