May 1, 1990
Subject:
Authority of Civil Magistrates to Hear Summary Ejectment Cases from Another County G.S. 7A-211
Requested By:
The Honorable James E. Lanning, Chief District Court Judge, 26th Judicial District
Question:
Does a magistrate have the authority to hear a summary ejectment action involving residential rental property in another county if the landlord and the tenant so provide in the lease?
Conclusion:
No.
A summary ejectment action is by definition a Small Claim action. G.S. 7A-210(2). The General Assembly has authorized a Chief District Court Judge to assign a small claim action to any magistrate in his or her district, if the defendant is a resident of the county in which the magistrate resides, G.S. 7A-211. Normally, a residential tenant lives in the rental property and is therefore a resident of the county where the property is located. A civil magistrate thus has no authority to hear such a case under G.S. 7A-211 if the property lies in another county.
Authority to prescribe the jurisdiction and powers of magistrates and district court judges is vested in the General Assembly. Constitution of North Carolina, Art. IV, § 12(4). Parties to a residential rental contract do not have the contractual power to expand a magistrate’s statutory authority to hear cases arising outside the county, nor do they have the contractual power to keep a properly empowered magistrate from the county where the property is located from exercising statutory authority to hear a summary ejectment case. The North Carolina Supreme Court has stated that such contractual provisions, if enforced, would improperly empower a party, "contrary to the will of the Legislature, to choose the courts in which its case should be tried, and thereby deprive of jurisdiction one of the courts authorized to hear the cause." Gaither v. Charlotte Motor Car Co., 182 N.C. 498, 501, 109 S.E. 362, 364 (1921), accord Roberts v. Lexington Ins. Co., 305 F.Supp. 47 (E.D.N.C. 1969).
Thus, the General Assembly has established the limits of a magistrate’s authority, and the parties have no right to expand or reduce that authority.
Lacy H. Thornburg Attorney General
David N. Kirman Assistant Attorney General