16 Ejectment of Tenants

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

16 Ejectment of Tenants

A. Definition

Ejectment of tenants is a statutory remedy enabling a landlord to regain possession of real property.

B. Elements

(1) a relationship of landlord and tenant

(2) one of the following events: (a) the tenant fails or refuses to pay rent when due or demanded; (b) the terms of the tenancy end; or (c) the terms or conditions of the lease are violated

(3) a material breach¹

C. Elements Defined

1. A Relationship of Landlord and Tenant

The plaintiff must show that a relationship of landlord and tenant exists by contract express or implied.² Once the plaintiff has made that showing, the defendant may not contest the landlord's title.³

2. One of the Following Events:

a. the tenant fails or refuses to pay rent when due or demanded;⁴

b. the term of the tenancy ends;⁵ or

c. the terms or conditions of the lease are violated

The plaintiff must show the occurrence of one of the three events listed in the statute.⁶Most cases pursuant to the statute involve failure to pay rent. In the event of such failure, the statute gives the landlord the right to seek ejectment, and it need not be shown that the right was repeated in the lease.⁷ Under the statute, it does not matter that failure to pay rent was inadvertent and not wilful.⁸ Where the allegation is that the tenant failed to pay rent, the landlord's claim is not barred for failure to accept rent tendered after the ejectment proceeding has commenced.⁹

3. A Material Breach

In Kiriakides v. United Artists Communications, Inc.¹⁰ the South Carolina Supreme Court held that statutory ejectment was not intended to be unlimited and that a forfeiture for a trivial or immaterial breach should not be enforced. The Court adopted the standards of the Restatement (Second) of Contracts regarding the determination of what constitutes a material failure of performance. Those factors are:

(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected:
(b) the extent to which the injured party can be reasonably compensated [by damages] for the part of that benefit of which he will be deprived;
(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
(d) the likelihood the party failing to perform or to offer to perform will cure his failure, taking account of all circumstances including any reasonable assurances;
(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.¹¹

D. Defenses

Section 15-3-360 provides that: "No entry upon real estate shall be deemed sufficient or valid as a claim unless an action be commenced thereupon within one year after the making of such entry and within ten years from the time when the right to make such entry descended or accrued."¹²

The tenant may seek an injunction against ejectment on the grounds it would work a forfeiture. It previously appeared this defense was only available where the lease set forth the acts constituting default and the means of termination of the tenancy. In such an instance, a court held the parties "rights are to be determined by a fair construction of the contract, not by statutory ejectment principles."¹³ Because forfeitures are not favored in law or equity,¹⁴ those forfeiture provisions are then strictly construed. Absent lease clauses requiring notice of termination it was subsequently held that construction of the lease would not overcome the statute and bar ejectment to prevent forfeiture.¹⁵

The Supreme Court of South Carolina address the issue of forfeiture in Kiriakides v. United Artists Communications, Inc.¹⁶ The court concluded the right of ejectment under statute was not unlimited and that termination could not be for a trivial or immaterial breach.

While waiver may also be raised as a defense, one case has held that mailing a late notice and assessing a late fee did not constitute waiver of the right to terminate the lease upon subsequent failure to pay rent.¹⁷ A statute provides that "... acceptance by the landlord of any rent, whether it shall have accrued at the time of issuing of such rule or shall subsequently accrue, shall not operate as a waiver of the landlord's right to insist upon ejectment, nor as a renewal or extension of the tenancy, but the rights of the parties as they existed at the time of the issuance of the rule shall control."¹⁸

The law provides that, on application of a landlord or the landlord's agent, a magistrate having jurisdiction will issue a written rule requiring the tenant to vacate or show cause why he or she should not be ejected,¹⁹ and if the tenant fails to appear and show cause within ten days of the issuance of the rule a warrant of ejectment will be issued.²⁰ Under earlier, similar statutory provisions, a court said the statute "protects tenants against the caprices of landlords by allowing them to show cause why the rent was not paid when due ...".²¹

Generally, ejectment pursuant to this chapter is unavailable for residential tenancies.²²However sections of the South Carolina Residential Landlord and Tenant Act provide:

When a dwelling unit has been abandoned or the rental agreement has come to an end and the tenant has left personal property in the dwelling unit or in the

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