Tenant Defenses to Evictions in South Carolina

In South Carolina, a landlord can evict a tenant for a variety of reasons, including not paying rent or violating the lease or rental agreement. However, a tenant may be able to fight the eviction with a valid defense.

This article explains the basic eviction process and some common defenses available to tenants in South Carolina.

South Carolina's Eviction Process

Evicting a tenant is a legal proceeding, regulated by statute. This means that the landlord must carefully follow all the rules required under South Carolina law, or the eviction may not be valid. The first step in the eviction process is giving the tenant written notice. The type of notice depends on the reason for the eviction and the terms of the lease or rental agreement.

Notice Requirements for Nonpayment of Rent

The most common reason landlords evict tenants is for nonpayment of rent. A landlord who wants to evict a tenant for this reason may first need to give the tenant a five-day notice to pay rent. The landlord is not required to give this notice to the tenant if the landlord included a statement in the lease or rental agreement that the tenant has five days to pay rent after it is due or the landlord will begin eviction proceedings against the tenant. This statement must be in conspicuous, bold type within the lease or rental agreement. At the end of five days, the landlord can go straight to court and file an eviction lawsuit.

If this statement is not included in the lease, then the landlord must give the tenant a written five-day notice that includes the following statement: "IF YOU DO NOT PAY YOUR RENT ON TIME. This is your notice. If you do not pay your rent within five days of the due date, the landlord can start to have you evicted. You will get no other notice as long as you live in this rental unit." If the tenant still does not pay rent by the end of five days, then the landlord can file an eviction lawsuit against the tenant (see S.C. Code Ann. § § 27-40-710(B) and 27-37-10(B)). The article Eviction Notices for Nonpayment of Rent in South Carolina has more information on this topic.

Notice Requirements for Lease Violations

A landlord can also evict a tenant for violating the lease or rental agreement. In this case, the landlord is required to give the tenant a 14-day notice. This notice must inform the tenant of the particular violation and allow the tenant 14 days to fix the violation (or at least make a good faith effort to begin fixing the violation). If the tenant does not fix the violation within 14 days, then the landlord can go to court and file an eviction lawsuit against the tenant (see S.C. Code Ann. § 27-40-710(A)).

Eviction Process

To begin the eviction lawsuit in South Carolina, also called an ejectment action, the landlord must file an affidavit with the court. An affidavit is a sworn statement by the landlord that provides details on the reasons the tenant should be evicted. Once filed, the court will then issue an order to show cause. This paperwork provides the date and time for a hearing before a judge. The tenant will receive copies of both the affidavit and the order to show cause. If the tenant wishes to fight the eviction, the tenant must appear at the hearing. At the hearing, the judge will listen to both the landlord and the tenant and then make a decision regarding the eviction.

Eviction Defenses in South Carolina

Even if a landlord thinks an eviction is justified, a tenant may still choose to fight the eviction. Below are some of the most common defenses available to tenants in South Carolina.

Landlord Evicted Tenant with a "Self-Help" Eviction

The only way a landlord can evict a tenant is by winning an eviction lawsuit in court. Even after the landlord wins the lawsuit, the only person authorized to actually remove the tenant from the rental unit is a law enforcement officer. It is illegal for a landlord to attempt to remove a tenant through any other means, such as shutting off the utilities or changing the locks on the doors. This type of behavior is often referred to as a "self-help" eviction or unlawful ouster, and the tenant can sue the landlord for trying it (see S.C. Code Ann. § 27-40-660). The article Illegal Eviction Procedures in South Carolina has more information on "self-help" evictions.

Landlord Did Not Follow Proper Eviction Procedures

Evictions are regulated by law in South Carolina, so this means that a landlord must carefully follow all the rules when evicting a tenant. Otherwise, the eviction may not be valid. For example, if the landlord is evicting the tenant for violating the lease or rental agreement, the landlord is required to give the tenant a 14-day notice before filing the eviction lawsuit. If the landlord does not give the tenant any notice before filing the lawsuit, then the tenant can defend against the eviction by claiming lack of notice. The judge would likely stop the eviction, and the landlord would need to start the whole process over, beginning with giving the tenant a 14-day notice. At the end of the 14 days, the landlord would have to file new paperwork with the court to begin a new eviction lawsuit.

Keep in mind that this type of eviction does not completely stop a justified eviction; it merely delays it. Once the landlord has fixed the improper procedure, the eviction will proceed as normal.

Landlord Evicts Tenant for Not Paying Rent

If a tenant is being evicted for not paying rent, the tenant may have a defense available.

Tenant Paid Rent in Full

A tenant has five days to pay rent after it is due (or after receiving notice, if the landlord is required to give notice). If the tenant pays rent during this five-day period, then the landlord must not proceed with the eviction. If the landlord proceeds with the eviction anyway, then the tenant can use evidence that rent was paid as a defense to the eviction. The tenant should always ask for a time-stamped receipt if paying rent late (see S.C. Code Ann. § 27-40-710(B)).

Landlord Did Not Maintain the Rental Unit

A landlord is required to maintain a rental unit according to minimum legal standards. This means the landlord must provide, among other things, heating, electricity, and water (including hot water) at all times (for a more complete list, see S.C. Code Ann. § 27-40-440). If the landlord fails to provide one of these essential services, the tenant, after giving written notice to the landlord, has a few options:

• The tenant can arrange for the services to be provided and then deduct the costs from the rent.
• The tenant can sue the landlord and recover damages.
• The tenant can terminate the rental agreement and move out of the rental unit.

It is important to note that the tenant must provide the landlord with written notice before pursuing any of these options. Unless the repairs require more immediate action, the landlord will have 14 days to make the repairs.

If the landlord tries to evict the tenant for failing to pay rent, the tenant can use the landlord's failure to maintain the rental unit as a defense to the eviction (see S.C. Code Ann. § § 27-40-610, 27-40-630, and 27-40-640).

Landlord Evicts Tenant for Violating the Lease Agreement

If a tenant has violated the lease or rental agreement, a landlord is required to give the tenant 14 days to correct the violation. If the tenant fixes the violation within that time, then the landlord must not proceed with the eviction. If the landlord proceeds with the eviction anyway, the tenant can use evidence that the violation was corrected as a defense to the eviction (see S.C. Code Ann. § 27-40-710(A)).

Landlord Discriminates Against the Tenant

Both the federal Fair Housing Act and the South Carolina fair housing law make it illegal for a landlord to discriminate against a tenant based on race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and disability. If a landlord tries to evict a tenant based on any of these characteristics, the tenant can use the discrimination as a defense to the eviction. See Housing Discrimination Prohibited by State and Local Law for more on laws prohibiting discrimination against tenants.

Mediation as an Alternative

A tenant may find that fighting the eviction is not always the best option. The tenant might have to pay the landlord's court and attorney's fees if unsuccessful in court. The tenant could also receive a negative credit rating and could be turned down for future housing. The best option for the tenant might be to try to talk to the landlord and negotiate a deal outside the court system. Many communities have free or low-cost mediation services that handle landlord-tenant disputes; local resources are available through the website mediate.com and the American Arbitration Association. The mediation faqs on the Nolo site provide more information on the subject.

Additional Resources for Tenants in South Carolina

South Carolina Legal Services can provide free or low-cost legal assistance to those who qualify. South Carolina Legal Services also publishes a free brochure on evictions, available to all. Tenants who live in federally assisted housing should also check out the tenant resource page at HUD.gov.

Some courts also provide information online, such as the Spartanburg County Magistrate Court.

When to Hire an Experienced Lawyer

If you have more specific legal questions about your eviction case or the landlord has already retained a lawyer, you should probably also contact a lawyer. A lawyer can handle the whole case or give you advice on how to proceed. A lawyer can also let you know how likely you are to win your case. You may especially want to hire an attorney if you are confident of your case and your lease or rental agreement entitles you to attorney fees if you win in court.

For advice on finding a good lawyer, see How to Find an Excellent Lawyer.

Also check out Nolo's Lawyer Directory for South Carolina lawyers who specialize in landlord-tenant law.

More Information on Evictions and Terminations

For more articles on the subject, see the Evictions and Terminations section of Nolo.com.

For more information on tenant rights, see Every Tenant's Legal Guide, by Janet Portman and Marcia Stewart.