N.C.P.I.—Civil 845.04

NOTE WELL: This defense is available only if the

landlord's action is brought for failure to pay rent

(N.C.P.I.-Civil 845.05). It is not available if the action

is based on breach of a provision of the lease (N.C.P.I.-

Civil 845.00) or holding over after the end of the term

(N.C.P.I.-Civil 845.10). If there is a factual issue

about tenant's tender, this issue should be submitted

to the jury first, to be followed by N.C.P.I.-Civil 845.05,

if this issue is answered "No." If there is no factual

dispute and tender was made, the lawsuit should be

dismissed. N.C. Gen. Stat. § 42-33.

This issue reads:

"Did tenant tender the rent due and court costs to the landlord?"

On this issue the burden of proof is on the tenant. This means

that the tenant must prove, by the greater weight of the evidence, that

he tendered the full amount of rent due and court costs to the landlord.

The law provides that a tenant has the right to pay or tender the

rent due and the costs of the action before judgment is given in an action

for ejectment.1

A "tender" is an actual offer of money, not a promise to pay. A

tender must be in cash and for the full amount of the rent due and court

costs.2 The court costs in this case are (state amount of court costs

incurred by the landlord as of the date of the alleged tender).3

Finally, as to this issue on which the tenant has the burden of

proof, if you find by the greater weight of the evidence that the tenant

tendered the full amount of rent due and court costs to the landlord, then

it would be your duty to answer this issue "Yes" in favor of the tenant.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "No" in favor of the landlord.