18 Forcible Entry and Detainer

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

18 Forcible Entry and Detainer

A. Definition

Forcible entry and detainer is a statutory¹ cause of action for the recovery of real property created to "require people to settle their disputes about land, not by their own force, but by the peaceable process of the law."²

B. Elements

(1) the plaintiff is disseized of lands or tenements

(2) by the defendant with force.³

C. Elements Defined

1. The Plaintiff Is Disseized of Lands or Tenements

The cause of action may be brought where the plaintiff possesses the land in fee, as an easement,⁴ or in tenancy,⁵ and is disseized of that interest.⁶ It is not necessary that the plaintiff be in actual possession when dispossessed,⁷ or that there be proof of title. The plaintiff who has established possession is entitled to stand on that possession without proof of title, and even if the defendant makes proof of title, forcible entry is not excused. "If [the defendant] had title, and the plaintiff would not let [the defendant in, the] way to get in was through the law, and not by forcible entry."⁸

2. By the Defendant with Force

The general rule is that for an entry to be forcible "it must be accompanied by circumstances tending to excite terror in the occupant, and to prevent him from maintaining his rights."⁹ This language of the South Carolina Supreme Court notwithstanding, it is not necessary that the plaintiff show dispossession by violence or conduct legally constituting assault. The statute itself provides the dispossession may be peaceable with the plaintiff "afterwards holden out by strong hand" or after an entry that "any feoffment or discontinuance in any wise thereof be made to defraud and take away the right of the possessor." While there must be evidence of force,¹⁰ it would appear that where the entry is without right and persists over the objections of the possessor, the element of force is met.¹¹However, the force must be more than is implied in ordinary trespass.¹²

D. Defenses

The statute of limitations for actions in forcible entry and detainer is old and replete with outdated language, but in sum, provides a limitation of three years since the property was first kept with force.¹³

E. Remedies

By statute¹⁴ the plaintiff is entitled to treble damages. The treble damages may not be mounted on punitive damages,¹⁵ and are only awardable where entry to real property by force is shown.¹⁶ The court may also, pursuant to statute, put the plaintiff in possession.¹⁷

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Notes:

^[1] S.C. Code §§ 15-67-410 - 15-67-470.

^[2] Vance v. Ferguson, 101 S.C. 125, 85 S.E. 241 (1...