Rock Hill, South Carolina - Tenant Eviction Process

EVICTION PROCESS IN SOUTH CAROLINA – HOW TO EVICT A TENANT IN SOUTH CAROLINA

Step 1: Understand the South Carolina Laws on Ejectment Proceedings (Evictions).

Since 1882, South Carolina has prohibited the use of “self-help” remedies to remove a residential tenant. Sharp v. Kinsman, 18 S.C. 108, 114 (1882) (“the landlord has no right to take the law into his own hands and proceed to eject the tenant, but that his duty would be to call to his aid the process of the law.”). The only two ways to lawfully eject a tenant are (1) with the tenant’s consent; or (2) by court order. The only two ways to lawfully remove a tenant are (1) with the tenant’s consent; or (2) by court order. No matter what your lease says, if a tenant refuses to leave, your only option is to take the tenant to court. Failure to do so can result in criminal charges, as well as civil liability (including punitive damages for trespass) for any damage done to the tenant’s personal property.

The first two are pretty self-explanatory. As for the third, the specific provisions contained in the lease will control, but they can include tenants who have:

Committed lease violations – (not rent related);
Allowed unauthorized pets in the home;
Allowed unknown occupants in the home, in violation of the lease;
Significantly damaged the property, in violation of the lease;
Committed crimes in violation of the lease; and
Are former owners of the property that remain in possession after a foreclosure;

Can a tenant deduct repairs from the rent paid?
South Carolina laws requires a landlord to “make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition.” S.C. Code Ann. § 27–40–440(a)(1) and (2) (2007). That being said, the landlord’s obligation to repair is independent of the tenant’s obligation to pay rent, and tenants have no right to “hold the property covered by the lease free of all demands for payment of rent.” Port Utilities Comm'n of Charleston v. Marine Oil Co., 173 S.C. 346, 175 S.E. 818, 820 (1934).

How long does it take to evict a tenant?  How long is the eviction process?
As short as 15 days in some instances, but as long as 2-3 months in other cases.

Can I turn off the utilities if the tenant doesn’t pay the rent?
South Carolina prohibits retaliatory conduct, and turning off utilities can be considered retaliatory conduct in certain circumstances. It is never a good idea to do this.

Can I change the locks if the tenant does not pay the rent?
No. If a landlord does this, South Carolina law allows a tenant to recover an amount equal to three months’ rent or twice the actual damages, whichever is greater, and reasonable attorney’s fees. S.C. Code Ann. § 27-40-660

Step 2: Notice to Vacate

This is the most important part of the eviction process. The type of notice that is required depends on the reason for eviction. If the tenant is being evicted for nonpayment of rent, a 5-day notice to pay is required (unless the lease quotes statutory language authorizing the landlord to automatically evict after five days). If the tenant is being evicted for violation of lease terms, the landlord is required to give the tenant a 14-Day Notice to Comply. If the tenant is being evicted because the lease is ending, the landlord must provide the tenant with a 30-Day Notice to Quit. The only type of eviction that does not require notice is when the tenant is being evicted for illegal activity.

Step 3: Filing and Serving the Eviction

The third step is straightforward. The landlord, his agent, or attorney, files an Application for Ejectment with the local magistrate. There are multiple magistrate courts in each county, and in some counties, identifying the appropriate magistrate can sometimes be difficult. The magistrate will then issue a Rule (or Order) to Show Cause, and attempt to have it served on the tenant by either the sheriff, deputy sheriff, magistrate’s constable, or anyone over the age of 18 who is not part of the case. If service is not effected within 120 days, the ejectment action may be dismissed.

 

Step 4: Default Judgment or Trial

If the tenant fails to answer within ten (10) days after being served, the landlord is entitled to a default judgment, and a writ of ejectment.

If the tenant answers and demands a trial, the matter proceeds to trial. Tenants are allowed to request a jury trial, but it is rare. Every magistrate court is different, but typically when you arrive at court, you will go to the clerk’s office (which may just be a window in the lobby outside the courtroom or other building). When the magistrate arrives, she or he will typically call all of the people waiting into the courtroom, then call eviction cases in whatever order the magistrate chooses. In some counties they are called in order of filing. In some counties, the parties with attorneys have their cases called first, then those who are pro se are called next.

When your eviction case is called, you will approach the bench and the judge will ask you to explain the case. Sometimes, tenants (defendants) don’t even bother to show up, but some do and it’s becoming increasingly popular for tenants to hire attorneys to represent them in eviction cases. The tenant may have no real defense, but the lawyers may work to prolong the eviction as long as possible giving their clients (your tenants) the longest period of time possible (free rent) in your property.

An experienced attorney can advise you on the most expedient course of action. After hearing arguments from both sides, the judge will issue a judgment. If the verdict is for the Plaintiff (property owner), the judgment will contain notice that a writ of ejectment will issue five (5) days after the ruling, requiring the tenant to vacate the property.

From here, the tenant can do one of three things:
1.         The tenant can vacate the property and return the keys. In which case on the sixth day after the Judgment, you go to the property and change the locks.
2.         The tenant can NOT vacate the property. The landlord will have to request that the writ of ejectment is posted, and 24 hours after posting the tenant will be forcibly removed the property. The bad news with writs of ejectment is that the sheriff will only help to forcibly remove the tenant. The landlord is personally responsible for removing all of the tenant’s personal items and placing them on the curb. The sheriff will not wait indefinitely. In most jurisdictions, the landlord will have roughly one (1) hour to remove everything that is left in the home. If you have a large unit, make sure to hire a moving company or bring plenty of help the day of the set out.
3.         The tenant can NOT vacate the property and file an appeal. See “Step 5: Appeal to Circuit Court” below.

Step 5: Appeal to Circuit Court

A tenant has thirty (30) days to appeal a judgment and writ of ejectment. However, an appeal in an ejectment case will not stay ejectment unless the tenant shall, at the time she or he files the appeal, gives an appeal bond in an amount sufficient to cover all costs and damages that could accrue to the landlord during the time of appeal. Thus, practically speaking, appeals need to be filed prior to enforcement of the writ of ejectment within 5-6 days, because there is no way to “uneject” a tenant after the sheriff has thrown her out! Once an appeal is filed, the case is transferred to the Circuit Court. See S.C. Magistrate Rule 18; S.C. Code Ann. §§ 27-37-120 and 27-37-130.

Circuit Courts are courts of record, and appeals from magistrate court to the circuit court are governed by the South Carolina Rules of Civil Procedure, the South Carolina Rules of Evidence, and certain statutes outlining specific ways that the circuit court judge will evaluate the case. An appeal to circuit court rarely results in a new trial. Instead, the circuit evaluates the appeal based “upon all the papers in the case, including the testimony on the trial, which shall be taken down in writing and signed by the witnesses, and the grounds of exception made, without the examination of witnesses in court. The appeal shall be heard on the original papers and no copy thereof need be furnished for the use of the court.” S.C. Code Ann. § 18-7-130. If the appeal is based on a question of fact, the circuit court judge will determine the facts based on affidavits, but may examine witnesses if the judge sees fit. S.C. Code Ann. § 18-7-180.

Select Provisions of South Carolina Law Pertaining to Dispossessory Proceedings

South Carolina Code of Laws
Title 27 - Property and Conveyances
CHAPTER 37
Ejectment of Tenants

SECTION 27-37-10. Grounds for ejectment of tenant.

(A) The tenant may be ejected upon application of the landlord or his agent when (1) the tenant fails or refuses to pay the rent when due or when demanded, (2) the term of tenancy or occupancy has ended, or (3) the terms or conditions of the lease have been violated.

(B) For residential rental agreements, nonpayment of rent within five days of the date due constitutes legal notice to the tenant that the landlord has the right to begin ejectment proceedings under this chapter if a written rental agreement specifies in bold conspicuous type that nonpayment of rent constitutes such notice. This requirement is satisfied if the written rental agreement contains the notice specified in Section 27-40-710(B).

SECTION 27-37-20. Ejectment proceedings.

Any tenant may be ejected in the following manner, to wit: Upon application by the landlord or his agent or attorney any magistrate having jurisdiction shall issue a written rule requiring the tenant forthwith to vacate the premises occupied by him or to show cause why he should not be ejected before the magistrate within ten days after service of a copy of such rule upon the tenant.

SECTION 27-37-30. Service of rule; posting and mailing requirements.

(A) The copy of the rule provided for in Section 27-37-20 may be served in the same manner as is provided by law for the service of the summons in actions pending in the court of common pleas or magistrates courts of this State. The methods of service described in subsections (B) and (C) may be used as alternatives to the method of service described in this subsection.

(B) When no person can be found in possession of the premises, and the premises have remained abandoned, as defined in Section 27-40-730 for residential rental agreements and in Section 27-35-150 for nonresidential rental agreements, for a period of fifteen days or more immediately before the date of service, the copy of the rule may be served by leaving it affixed to the most conspicuous part of the premises.

(C) When service as provided in subsection (A) has been attempted unsuccessfully two times in the manner described in item (1), a copy of the rule may be served by affixing both it and documentation of the two service attempts to the most conspicuous part of the premises and mailing a copy of the rule in the manner described in item (2):

(1) Each of the two attempts to serve the defendant must be separated by a minimum of forty-eight hours and must occur at times of day separated by a minimum of eight hours. The person attempting to serve the rule must document the date and time of the attempts by affidavit or by certificate in the case of a law enforcement officer. On the first unsuccessful attempt to serve the rule, a copy of the rule must be affixed to the most conspicuous part of the premises. On the second unsuccessful attempt to serve the rule, the documentation of the two attempts to serve the rule must be attached to the copy of the rule when it is affixed to the most conspicuous part of the premises.

(2) For mailing by ordinary mail to be considered to complete service under this item, it must be accomplished by placing a copy of the rule and documentation of the prior attempts at service in an envelope in the presence of the clerk of the magistrates court. The clerk is responsible for verifying that the envelope is addressed to the defendant at the address shown in the rule as the rental premises of the defendant or another address for receipt of mail furnished in writing by the tenant to the landlord, that the envelope contains the necessary documents, and that the clerk has placed the sealed and stamped envelope in the United States mail. The clerk's verification must be made a part of the record in the case, and service by ordinary mail is not considered complete without the clerk's verification. A fee as provided for in Section 8-21-1010(14) must be collected by the magistrate or his clerk for the verification and mailing in this item.

(3) Mailing of the rule constitutes service when the requirements of items (1) and (2) have been met and ten days have elapsed from the time of mailing. If these requirements have been met, the specified time period for the tenant to show cause why he should not be ejected as provided in Section 27-37-20 begins to run on the eleventh day after mailing. However, if the tenant contacts the magistrates court prior to the eleventh day, the specified time period for the tenant to show cause as provided in Section 27-37-20 must begin to run at the time of contact.

SECTION 27-37-120. Appeal.

Either party may appeal in an ejectment case and such appeal shall be heard and determined as other appeals in civil cases from the magistrate's court.

SECTION 27-37-130. Bond required to stay ejectment on appeal.

An appeal in an ejectment case will not stay ejectment unless at the time of appealing the tenant shall give an appeal bond as in other civil cases for an amount to be fixed by the magistrate and conditioned for the payment of all costs and damages which the landlord may sustain thereby. In the event the tenant shall fail to file the bond herein required within five days after service of the notice of appeal such appeal shall be dismissed by the trial magistrate.

SECTION 27-37-160. Execution of writ of ejectment.

In executing a writ of ejectment, the constable or deputy sheriff shall proceed to the premises, present to the occupants a copy of the writ and give the occupants twenty-four hours to vacate voluntarily. If the occupants refuse to vacate within twenty-four hours or the premises appear unoccupied, the constable or deputy sheriff shall announce his identity and purpose. If necessary, the deputy sheriff, but not a constable, may then enter the premises by force, using the least destructive means possible, in order to effectuate the ejectment. If the premises appear to be occupied and the occupant does not respond, the constable or deputy sheriff shall leave a copy of the writ taped or stapled at each corner and attached at the top of either the front or back door or in the most conspicuous place. Twenty-four hours following the posting of the writ, if the occupants have not vacated the premises voluntarily, the deputy sheriff, but not a constable, may then enter the premises by force, using the least destructive means possible, in order to effectuate the ejectment. Discretion may be exercised by the constable or deputy sheriff in granting a delay in the dispossession of ill or elderly tenants.

South Carolina Code of Laws
Title 18 - Appeals
CHAPTER 7
Appeals to Circuit and County Courts in Other Cases
ARTICLE 1
General Provisions
SECTION 18-7-110. Offer to allow judgment on appeal.

In any appeal either party may, at any time before the trial, serve upon the opposite party an offer, in writing, to allow judgment to be taken against him for the sum or property or to the effect in such offer specified, and with or without costs as the offer shall specify. If the party receiving such offer accept it and give notice thereof in writing within ten days, he may file the return and offer, with an affidavit of service of notice of acceptance thereof, and judgment shall be entered thereon according to the offer. If the notice of acceptance be not given, the offer is to be deemed withdrawn and cannot be given in evidence.

SECTION 18-7-180. Judgment on appeal; appeals on errors in fact.

If the appeal is founded on an error in fact in the proceedings, not affecting the merits of the action and not within the knowledge of the magistrate, the court may determine the alleged error in fact on affidavits and may, in its discretion, inquire into and determine the alleged error upon examination of the witnesses. Every issue of fact so joined or brought upon an appeal shall be tried in the manner provided in Section 18-7-130.

SECTION 18-7-190. Judgment on appeal; appeals on issue of law.

If the issue joined before the magistrate was an issue of law, the court shall render judgment thereon according to the law of the case; and if such judgment be against the pleadings of either party, an amendment of such pleading may be allowed on the same terms, and in like case, as pleadings in actions in the circuit court, and the court may thereupon require the opposite party to answer such amended pleading or join issue thereon, as the case may require, summarily. If upon an appeal in an issue of law the court should adjudge the pleading complained of to be valid, it shall, in like manner, require the opposite party summarily to answer such pleading or join issue thereon, as the case may require.

Disclaimer: The law is constantly changing and there may be times when the information on this web site will not be current. This information is provided for general informational purposes only and is not intended as legal advice. This information is not a comprehensive treatment of the subject and is not a substitute for advice from an attorney.