The South Carolina Residential Landlord-Tenant Act

1. The South Carolina Residential Landlord-Tenant Act South Carolina Appleseed Legal Justice Center

2. South Carolina Appleseed Legal Justice Center is dedicated to advocacy for low- income people in South Carolina and effecting systemic change by acting in and through the courts, the legislature, administrative agencies, communities and the media. We help others do the same through education, training and co-counseling. To find out more about us, please visit http://www.scjustice.org on the Internet.

3. This Presentation Is For Educational Purposes Only • This Landlord-Tenant law presentation is provided as an educational resource and is not intended as an answer to a specific legal question relating to any specific set of facts.

4. Legal Assistance For The Community • South Carolina Legal Services (Serving the low-income community) • Call LATIS at 1-888-346-5592 • SC Bar Lawyer Referral Service (Serving the general public) • Call 1-800-868-2284

5. The South Carolina Code Basic South Carolina Landlord-Tenant law is addressed in Title 27 of the SC Code: • South Carolina Residential Landlord and Tenant Act • § 27-40-10 et. seq. • Landlord and Tenant Generally • § 27-33-10 et. seq. • Creation, Construction and Termination of Leasehold Estates • § 27-35-10 et. seq.

6. More on the South Carolina Code Basic South Carolina Landlord-Tenant law is addressed in Title 27 of the SC Code: • Ejectment of Tenants • § 27-37-10 et. seq. • Rent • § 27-39-10 et. seq. • Manufactured Home Park Tenancy Act • § 27-47-10 et. seq.

7. Related Statutes and Regulations • Federal Law • Federal Fair Housing Act • 42 U.S.C. § 3601 et. seq. / 24 CFR Part 100, 103, & 104 • State Law • South Carolina Fair Housing Law • § 31-21-10 et. seq.

8. South Carolina Residential Landlord and Tenant Act • The South Carolina Residential Landlord and Tenant Act (SCRLTA) is located at § 27-40-10 et. seq. It applies to most Landlord-Tenant arrangements except the following: • Residency in an institution; • Occupancy of a buyer under a contract of sale; • Occupancy in a structure associated with a fraternal or social organization;

9. South Carolina Residential Landlord and Tenant Act • Transient occupancy in a hotel, motel or other accommodations subject to the sales tax on accommodations; • Occupancy in premises owned by an employer-Landlord where occupancy is conditional upon employment; • Occupancy by the owner of a condominium unit or the owner of a proprietary lease in a co-op; • Occupancy under a rental agreement covering the premises used by the occupant primarily for agricultural purposes;

10. South Carolina Residential Landlord and Tenant Act • Occupancy in a vacation time share; and • Residence at a charitable or emergency protective shelter • The SCRLTA is a gap-filler. It covers omitted necessary terms without overly-limiting the ability of a Tenant and a Landlord to make a rental agreement. • Examples of Necessary Terms: Term of the tenancy, usage of the apartment, etc.

11. Is a Written Lease Required? • No, but it’s smart to have one. • Remember, like any other contract, performance on the part of the tenant or the landlord can make a lease effective. (§ 27-40-320)

12. What is NOT Allowed in a Rental Agreement? - § 27-40-330 • A waiver of the Tenant’s rights or remedies under the SCRLTA • Provisions that shift the Landlord’s liability to the Tenant • The Tenant may recover additional damages if the Landlord deliberately or maliciously includes these terms in a lease

13. Obligations of the Landlord • Landlords must: • Deliver possession of the unit at the beginning of the lease term (§ 27-40-430) • Disclose owner or any agents who are authorized to act on owner’s behalf re: service, notices, demands (§ 27-40-420) • In writing • Before or at the beginning of the tenancy • Must include the name and address of the owner and agents • Because agents of the Landlord must comply also, failure to comply makes the authorized person liable for purpose of service of process, notice/demands/ and performing Landlord’s obligations

14. Obligations of the Landlord • Landlords must: • Maintain the Premises (§ 27-40-440) • This includes: • Complying with housing and building codes affecting health and safety • Making repairs and keeping premises in fit and habitable condition • Keeping common areas in a reasonably safe condition • Keeping common areas in a reasonably clean condition (if more than 4 units on premises) • Making running water, reasonable amounts of hot water, and reasonable heat available

15. Obligations of the Landlord • Maintaining electrical, gas, plumbing, sanitary, heating, ventilating, air condition, and other facilities and appliances in reasonably good and safe working condition • Note: Appliances located in the unit are presumed to be supplied by the Landlord unless the rental agreement says otherwise • Note: Where the building/housing code requires more than the SCRLTA, the building/housing code trumps

16. Additional Rules and Regulations from the Landlord • A Landlord can adopt rules or regulations about the Tenant’s use and occupancy of the property if: (§ 27-40-520) • They are to promote the safety, convenience, or welfare of the Tenants, preserve the property from abuse or make a fair distribution of services and facilities for Tenants; • They are reasonably related to the purposes for which they are adopted; • They apply to all Tenants in a fair manner; • They are specific enough to put the Tenant on notice of what is and is not allowed;

17. Additional Rules and Regulations from the Landlord • They are not meant to help the Landlord evade his or her obligations; and • The Tenant receives notice when entering into the rental agreement or when the rules are adopted • If the rules and regulations substantially modify the bargain and if the Tenant objects in writing to the Landlord within 30 days after promulgation of the rules, the rules/regulations are not valid as to that Tenant

18. Limitation of Liability • Under § 27-40-450, unless otherwise agreed, when a Landlord sells the premises, the Landlord is relieved of liability under the rental agreement for events occurring after the Tenant receives written notice of the sale • Except as to the security deposit if the security deposit is transferred to the new purchaser and the Tenant is notified in writing a reasonable time after the sale about the transfer of the deposit • If this occurs, the new purchaser is on the hook for complying with security deposit requirements

19. Prohibited Conduct by Landlord • Landlords cannot: • Abuse their right to access the premises – • § 27-40-530(c) and § 27-40-660 • Shut off essential services - § 27-40-630 and § 27-40-660 • Improperly exclude the Tenant from the unit • § 27-40-660 • Engage in retaliatory conduct for a Tenant’s complaint- § 27-40-910 • Fail or refuse to comply with the requirements regarding the return of security deposits – • § 27-40-410

20. Obligations of the Tenant • Tenants must: (§ 27-40-510) • Keep the unit reasonably safe and clean • Dispose of trash and waste from unit in a reasonably clean and safe manner • Keep plumbing fixtures in unit reasonably clean • Use facilities and appliances in reasonable manner • Comply with lease, rules, and regulations • Pay rent on time (§ 27-40-710)

21. Prohibited Conduct by the Tenant • Tenants cannot: • Damage the unit or allow guests to do so • Unreasonably withhold consent for the Landlord to enter the unit to inspect, repair, or exhibit the unit (§ 27-40-530) • Disturb other Tenants or allow guests to do so • Violate health and safety codes • Abandon the rental unit (§ 27-40-730) • Use the premises for purposes other than a dwelling or conduct illegal activity on premises (§ 27-40-540)

22. Accessing the Unit • When a Landlord can enter the unit: • Without consent (§ 27-40-530) • In case of emergency • Between 9am and 6pm for regularly scheduled services if stated in rental agreement conspicuously, and if the Landlord announces the intent to do so prior to entering • Between the hours of 8am and 9pm to provide services requested by the Tenant, and if the Landlord announces the intent to do so prior to entering • With a court order • Other limited circumstances • In all other cases, Landlord must give 24 hours notice and can only enter at reasonable time

23. Lease Termination by Landlord • If Tenant fails to comply with lease through: • Nonpayment of rent (§ 27-40-710) • Tenant has five days from date the rent is due to pay • Landlord must give written notice of nonpayment and his intent to terminate the rental agreement if rent is not paid during the five day period under § 27-40-710(B) • If this notice is part of the written rental agreement, no other notice is necessary • Only one such notice is required for any lease term • Breach of lease materially affecting health and safety or physical condition of the property (§ 27-40-720) • Landlord must give 14 day written notice to Tenant unless the case is an emergency

24. Lease Termination by Landlord • Abandonment of the Unit (§ 27-40-730) • If there is an unexplained absence by the Tenant for 15 days after a failure to pay rent • If the Tenant has voluntarily terminated the utilities and there is an unexplained absence after failure to pay rent, the 15-day rule does not apply • Abandonment is considered immediate • If abandonment and Tenant leaves property less than $500 in value, the Landlord can enter the unit and dispose of the property • If abandonment and Tenant leaves more than $500 in property, Landlord must deal with property through the ejectment procedure in § 27-37-10 et. seq.

25. Lease Termination by Landlord • Through normal ending of lease • Written notice of termination of lease with at least one term’s notice • If lease is week-to-week, one week’s notice • If lease is month-to-month or for 1 year, one month’s notice

26. Lease Termination by Tenant • If Landlord fails to comply with the lease through: • Lease violations or breach of lease that materially affects health and safety or the physical condition of the unit, the Tenant may give 14 days notice to the Landlord in writing • § 27-40-610 • The Landlord has the opportunity to cure the breach • Failure to deliver possession of the unit to Tenant • § 27-40-620 • Tenant can give 5 days’ written notice to the Landlord to terminate (and get back prepaid rent and security deposit) or • Tenant can demand performance of rental agreement

27. Lease Termination by Tenant • Fire and Casualty Damage (§ 27-40-650) • If unit is uninhabitable, Tenant may immediately vacate and give Landlord 7 days’ notice in writing of the intention to terminate the rental agreement • If the unit is partially inhabitable and lawful, Tenant’s rent is reduced in proportion to diminution in value of rental unit • Unlawful ouster or exclusion by Landlord • § 27-40-660 • No specific notice required, but Tenant can either recover possession or terminate rental agreement and three times the rent or twice the actual damages (whichever is greater) • If termination of rental agreement, Landlord must return security deposit

28. Security Deposits • § 27-40-410 • When the tenancy is terminated, the security deposit must be returned to the Tenant minus any amount held for rent and damages due to Tenant’s noncompliance with the lease (not normal wear and tear) within the latter of 30 days from the termination date or demand by the Tenant • Itemized damage list plus refunded portion if damages • The Tenant must provide the Landlord in writing with a forwarding address for security deposit return • Potential for treble damages if Landlord does not comply

29. Jurisdiction Under the SCRLTA • Circuit Courts and Magistrate Courts both have jurisdiction (i.e., concurrent jurisdiction) over Landlord-Tenant disputes and evictions under the SCRLTA. See § 22-3-10(10)

30. Service of Process Under the SCRLTA – Serving the Tenant • Serving the Tenant • Once served, the Tenant has 10 days to respond to Rule to Show Cause • Methods of Service • Personal Service - § 27-37-30(A) • If the unit has been abandoned, service can be made through posting - § 27-37-30(B) • Posting = On the most conspicuous part of the premises • Abandonment = Unexplained absence from the premises for at least 15 days after failure to make a rental payment • Before the first attempt at service

31. Service of Process Under the SCRLTA – Serving the Tenant • By posting and mailing – § 27-37-30(C) • Two attempts must have been made first at least 48 hours apart and at different times of day at least 8 hours apart • On the first attempt to serve, a copy of the Rule to Show Cause must be posted at the most conspicuous part of the premises. • On the second attempt to serve, the documentation of the two attempts to serve the rule must be attached to the copy of the Rule to Show Cause when it is affixed to the most conspicuous part of the premises. • Service assumed completed after 10 days have passed from time of mailing, unless Tenant contacts Court prior to 10 days. • When service through posting and mailing, Magistrate Court Clerk must verify that proper documents were placed in a properly addressed envelope with proper postage and mailed

32. Evictions - §27-37-10 et. seq. • Landlords must proceed in court to evict, unless there is an abandonment situation with less than $500 in property per § 27-40-730 • Tenant receives service per previous slides, and has 10 days to request a hearing • A jury trial is available on demand by either side

33. Evictions - §27-37-10 et. seq. • While case is pending, Tenant keeps paying rent while in possession of unit without Landlord’s rights being waived • (§ 27-37-150)

34. PROTECTIONS FOR TENANTS IN FORECLOSED PROPERTIES • A new federal law called the “Protecting Tenants at Foreclosure Act” (PTFA) protects tenants who are renting homes or apartments that are being foreclosed on. • Bona fide tenants in bona fide leases entered into before the notice of foreclosure are protected on any foreclosures that occurred after May 20, 2009 and before January 1, 2015. • Recent law has defined the “date of a notice of foreclosure” as the date "on which complete title to a property is transferred to a successor entity or person as a result of an order of a court or pursuant to provisions in a mortgage, deed of trust, or security deed."

35. NEW PROTECTIONS FOR TENANTS IN FORECLOSED PROPERTIES • Applies to tenants who live in a property with a federally-related mortgage loan (such as HUD loans, Fannie Mae, Freddie Mac, and many other types of commercial loans) OR lives in ANY dwelling or residential real property with a lease • Must be a bonafide tenancy and a bonafide lease • Must be arms’ length transaction • Tenant cannot be paying substantially less than fair market rent unless there is a subsidy involved (e.g., Section 8)

36. NEW PROTECTIONS FOR TENANTS IN FORECLOSED PROPERTIES • The protections that tenants have under the PTFA are: • Tenants with less than 90 days left on their leases: • Entitled to 90 days’ notice before the new owner can file an eviction action in court (includes verbal/oral leases) • Tenants with more than 90 days left on their leases: • Have a right to stay in their unit until the end of the lease • Exception: The lease may be terminated with 90 days’ notice if the new owner will occupy the unit as his or her primary residence • There may be independent grounds for the new owner to evict the tenant (e.g., nonpayment of rent, violation of lease terms, etc.).

37. NEW PROTECTIONS FOR TENANTS IN FORECLOSED PROPERTIES • Tenants in Housing Choice Voucher/Section 8 Housing get even more protection • New owners of foreclosed properties that have tenants living in them who have Housing Choice/Section 8 Vouchers not only take the property subject to the tenant’s Housing Choice/Section 8 Voucher lease, but also subject to the Housing Assistance Payment contract • Again, independent termination or eviction grounds may apply, but the new owner wanting the property vacant before selling it is not “good cause” for termination or eviction.

38. A Few Words About Fair Housing Laws • In brief, the Federal Fair Housing Act and its amendments prohibit housing discrimination on the basis of: - Race - Color - Gender - Religion - National Origin - Disability - Familial Status

39. Fair Housing Laws • Fair Housing Laws generally prohibit the following, if they are done based on one or more of those seven categories: • Refusal to rent • Refusal to negotiate for housing • Making housing unavailable • Setting different terms, conditions, or privileges for rental of a dwelling • Providing different housing services or facilities • Falsely stating that housing is unavailable for inspection or rental • Denying access to or membership in a facility or service related to the rental of housing

40. Does the FHA Give Additional Rights to the Disabled? • Yes. Under the FHA, if a tenant or someone in the tenant’s household is disabled, he or she must be allowed to make reasonable modifications to the unit or common areas if needed for the disabled person to use the housing. • The reasonable modifications must be paid for by the disabled person or family. • If it is reasonable, the landlord can make the tenant remove the reasonable modifications when the tenant moves.

41. What are Reasonable Modifications? • They are necessary physical changes to the housing or common areas to help a disabled person use the housing. • Some examples of reasonable modifications are: • Having a doorway widened to fit a wheelchair • Having a ramp added to a unit for a wheelchair • Having “grab bars” added to a bath tub * There are special rules for some newer buildings where these changes must already be made.

42. Do the FHA and Related Laws Give Additional Rights to the Disabled? • Yes. The FHA, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act all prevent housing discrimination against the disabled. • If the tenant or someone in the tenant’s household is disabled, the tenant also has the right to have reasonable accommodations made if it will help the disabled person to use the housing. • The cost of the reasonable accommodation is not paid for by the disabled person. • A reasonable accommodation must be necessary to help the disabled person using the housing.

43. What are Reasonable Accommodations? • Reasonable accommodations are necessary changes to a Landlord’s rules or policies to help a disabled person use the housing. • Some examples of reasonable accommodations are: • Allow a seeing eye dog in a building where pets are not allowed • Making disabled parking available in front of a unit for a disabled person

44. Does South Carolina Have a state Fair Housing Law? • Yes. South Carolina’s Fair Housing Law (found at SC Code Ann. § 31-21-10 et. seq.) echoes the federal law. • The South Carolina Human Affairs Commission is the agency that oversees the SC Fair Housing Law (for non-federally funded properties)

45. Contact Info: Hunger, Housing, and Community Economic Development SC Appleseed Legal Justice Center P.O. Box 7187 Columbia, SC 29202 (803) 779-1113