[Juliemeandi]

I sold my house on land contract to my brother. He owes me massive amounts of money and back property taxes. In the default provision states if they are 30 days past due the entire unpaid balance becomes due and that I am entitled to all remedies provided for by the laws of this state (NC) and or do any other remedies and seek relief now or hereafter. That all monies received are non refundable and in the event of default the venders shall not remove any appliances or fixtures from said property. Now, my question is it doesn't mention possession or forfeiture but that is implied and that is what I thought it meant. So my question is how to proceed. I own this house. The contract was never recorded with the county and I don't want to foreclose. From what I understand I would have to sell my own house that I own free and clear which doesn't make sense. Please anyone help me if you can. Thank you.

[ScottGem]

Who made up this contract? Based on what you said, you file suit to regain possession. The court awards you the property back with him owing the balance and you hire a sheriff to remove him if he refuses to vacate.

[Juliemeandi]

I got it off the Internet on a real-estate website. So I would file suit as a vendor to regain possession since it was a land contract and not a lease right? So it doesn't matter that it doesn't say possession or forfeiture since it is implied?

[ScottGem]

You're the vendor (seller). Most land sales contracts specify that upon default the contract ;-reverts to a rental lease. Its possible you have the wrong type of contract which may cause trouble in court.

But your only recourse based on what you described of the contract wording is to file suit for repossession.

[Juliemeandi]

Well I did a summary ejectment as landlord -tenant before a magistrate and won. They appealed and my complaint was dismissed for lack of matter jurisdiction in district court. So, I should have just asked for possession for default of land contract?

[AK lawyer]

Well I did a summary ejectment as landlord -tenant before a magistrate and won. They appealed and my complaint was dismissed for lack of matter jurisdiction in district court. So, I should have just asked for possession for default of land contract?

It appears that you filed this in the wrong court.

[Fr_Chuck]

You have a very bad problem since this is a very poor land contract. There is no specific duty or option of what happens at default. It should have said very clearly that it reverts to a rental and you then have right to evict.

Your only two options is to
1. try to declare it a rental and file for eviction in housing court.

2. do a foreclosure but to be honest I am not sure your contract gives you a legal right to even do that.

At this point you really need to hire an real estate attorney to clean up this mess.

[Juliemeandi]

Yeah, I already did. He said foreclosure was it at this point on this breached contract. I was just hoping that he missed something on the contract. Oh well, it was worth asking. Thanks for the replies.

[AK lawyer]

Yeah, I already did. He said foreclosure was it at this point on this breached contract. I was just hoping that he missed something on the contract. Oh well, it was worth asking. Thanks for the replies.

I too find it hard to understand how a contract which was broken by the other party, and which was not recorded, can nevertheless be, in effect, a mortgage.

It's possible that he missed something about eviction law in your state. It wouldn't hurt to get a second opinion.

... I own this house. The contract was never recorded with the county and I don't want to foreclose. From what I understand I would have to sell my own house that I own free and clear which doesn't make sense. ...

What you possibly don't understand is that, at the foreclosure sale, you would be able to bid the price the buyer agreed to pay you, plus your costs and attorney fees. So in reality, unless someone wants to pay you much more than what you already agreed to sell it for, you will end up owning the property free and clear of the "land contract".

Then you would have to evict them again.

[Fr_Chuck]

The contract is considered a sale document since there is no clause in it, reverting it to a rental. He can not evict since they own it ( they can register it anytime) and the contact does not give them any other options.

[AK lawyer]

The contract is considered a sale document ...

I would think that a conveyance would have to be done by a deed, not a contract.

But I haven't been able to pin that down in the NC statutes. "Chapter 39: Conveyances dances all around it, but doesn't seem to say it.

I do find this, however:

" 47H‑2. Minimum contents for contracts for deed; recordation.

(a) Writing Required. – Every contract for deed shall be evidenced by a contract signed and acknowledged by all parties to it and containing all the terms to which they have agreed. The seller shall deliver to the purchaser an exact copy of the contract, containing all the disclosures required by subsection (b) of this section, at the time the purchaser signs the contract.
(b) Contents. – A contract for deed contract shall contain at least all of the following:
...
(d) Recordation. – Within five business days after the contract has been signed and acknowledged by both the seller and the purchaser, the seller shall cause a copy of the contract or a memorandum of the contract to be recorded ...

(e) Effect of Forfeiture. – Upon default and forfeiture after proper notice of default and intent to forfeit and failure of the purchaser to substantially cure the default, the purchaser's equitable right of redemption shall be extinguished by:

...
(2) A final judgment or court order entered by a court of competent jurisdiction that terminates the purchaser's rights to the property and extinguishes the equity of redemption. A certified copy of the order shall be recorded in the office of the register of deeds of the county in which the property is located pursuant to G.S. 1‑228.
..."

Seems like such a judgment can be sought, instead of seeking a foreclosure.