The South Carolina Residential Landlord-Tenant Act Clanitra L. Stewart, Esq. South Carolina Appleseed Legal Justice Center 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. This Presentation Is For Educational Purposes Only This Landlord-Tenant law presentation is provided as an educational resource and is not intended as legal advice or to answer any specific legal question relating to any specific set of facts. If you or your clients have questions about how the law applies in specific situations or if you or your clients receive court papers, they should consult an attorney of their choice as soon as possible. For Legal Assistance 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 To File a Housing Discrimination Complaint: Department of Housing and Urban Development (HUD) Call 1-800-669-9777 or 1-800-440-8091 South Carolina Human Affairs Commission Call 1-800-521-0725 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. 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. Related Statutes and Regulations Federal Law Federal Fair Housing Act 42 U.S.C. § 3601 et. seq. / 24 CFR Part 100, 103, & 104 Public Housing Law 42 U.S.C. § 1437 / 24 CFR Parts 5, 960, 966, etc. Section 8 Project-Based Housing Program 42 U.S.C. § 1437 /24 CFR Part 983 Housing Choice Voucher Program 42 U.S.C. § 1437(o) / 24 CFR Parts 5 & 982 Related Statutes and Regulations Other State Law South Carolina Fair Housing Law § 31-21-10 et. seq. 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; 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; 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: Amount of rent, time and place of rent payment, term of the tenancy, etc. Is a Written Lease Required? No, but it’s smart to have one. Even if the Landlord doesn’t sign the rental agreement, acceptance of rent gives the rental agreement the same effect as if it had been signed (§ 27-40-320) If the Tenant doesn’t sign the rental agreement, possession of the unit and payment of rent is as good as signing. (§ 27-40-320) What is NOT Allowed in a Rental Agreement? - § 27-40-330 A waiver of the Tenant’s rights or remedies under the SCRLTA An authorization for someone else to confess judgment on behalf of the Tenant on a claim on rental agreement 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 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 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 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 Obligations of the Landlord Undervery limited circumstances, the Landlord and Tenant can agree that Tenant has the responsibility to perform certain specified repairs if: Done in good faith and not to evade legal obligations The work is not necessary to make unit comply with housing/building codes The unit is not a single-family residence The agreement does not change the obligations the Landlord has to other Tenants in the premises 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; 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 Ifthe 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 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 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 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) Obligations of the Tenant Refrain from deliberate damage to the unit or allowing guests to damage unit Use the unit as a dwelling only and not conduct illegal activities on premise (§ 27-40-540) Refrain from disturbing the other Tenant’s peaceful enjoyment of premises or allowing guests to do so 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) 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 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 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. Lease Termination by Landlord Through normal ending of lease Writtennotice 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 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 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 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 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) 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 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 completed after above and 10 days have passed from time of mailing, unless Tenant contacts Court prior to 10 days. Service of Process Under the SCRLTA – Serving the Landlord 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 Serving the Landlord - § 27-40-130 If the Landlord is not a resident of SC or is a corporation not authorized to do business in SC, an agent for service located within the state can be designated by the Landlord Designation must be in writing and filed with the Secretary of State If there is no designation or if designated agent cannot be served, the Secretary of State can be served Service of Process Under the SCRLTA – Serving the Landlord To serve the Secretary of State, the Plaintiff must: 1. Mail a copy of the process and pleading to the Landlord by registered mail or certified mail, return receipt requested at the Landlord’s last reasonably attainable address, and 2. File an affidavit of compliance with the court of the county where the action is filed 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 Procedures for hearing scheduling vary by county 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) A Few Words about Public and Subsidized Housing Public Housing 24 CFR Parts 5, 960, 966, etc. The assistance is tied to the unit HUD funds local housing authorities to provide low- or no-cost housing to low-income households The Housing Authority is the Landlord with public housing HUD rules for public housing provide greater protection to Tenants than the SCRLTA, so those rules also apply A Few Words about Public and Subsidized Housing Section 8 Project Based Housing Program 24 C.F.R. Part 983 The assistance is tied to the unit Housing Choice Voucher Program – Formerly known as the Section 8 Voucher Program 24 C.F.R. Part 982 Assistance is tied to the Tenant, who is able to seek private-market housing A Few Words about Public and Subsidized Housing The private owner signs a Housing Assistance Payment contract with the Housing Authority, specifying the amount of rent Tenants sign a lease with the private owner Tenants must abide by both the lease and the HUD rules All public and subsidized housing in SC is covered by the SC Residential Landlord-Tenant Act, but federal regulations usually give tenants and landlords greater rights and/or responsibilities than under just the SCRLTA. Therefore, the appropriate federal rules must be consulted along with the SCRLTA when public and subsidized housing landlords or tenants have issues. 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 What is Familial Status? In general, familial status means whether or not there is a child under 18 in the household. It can also mean whether someone is pregnant, or getting legal custody or already has legal custody of one or more children under 18. Exception: Some housing is set aside by the government as “Housing for Older Persons” or “Senior Housing”. Special rules have to be met for housing to use this exception to the FHA 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 Does the FHA Give Additional Rights to the Disabled? Yes. Under the FHA, if you or someone in your household is disabled, your Landlord must let you make reasonable modifications to your unit or common areas if you need these to use the housing. The reasonable modifications must be paid for by the disabled person or family. If it is reasonable, your Landlord can make you remove the reasonable modifications when you move. 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. Does the FHA Give Additional Rights to the Disabled? If you or someone in your household is disabled, you also have the right to have reasonable accommodations made if it will help you 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. 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 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) Additional Questions? Clanitra L. Stewart, Esq. Hunger, Housing, and Community Economic Development SC Appleseed Legal Justice Center P.O. Box 7187 Columbia, SC 29202 Voice: (803) 779-1113 extension 104 Fax: (803) 779-5951
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