F. Landlord's Obligations

• Library: Practical Guide to Commercial Real Estate in South Carolina (SCBar) (2012 Ed.)

F. Landlord's Obligations

1. Possession⁹²

The essential elements of commercial leases are generally considered to be the grant of possession and the exclusive use and enjoyment of the land, definite rent, and a certain term.⁹³ However, South Carolina courts have found landlord-tenant relationships to exist despite the lack of definite rent and the lack of a termination date.⁹⁴ Further, the South Carolina Supreme Court has held that a landlord-tenant relationship may exist without a written lease if the tenant has entered and occupied the property and the landlord has transferred possession and control of the property.⁹⁵

2. Maintenance and Repairs

Because commercial leases are not governed by the South Carolina Residential Landlord and Tenant Act, they are not subject to implied warranties of fitness or habitability; the commercial landlord has no duty to maintain the leased premises in a safe condition.⁹⁶ The landlord's only legal duty is to maintain common areas over which no one tenant has exclusive possession or control, such as hallways and stairwells.⁹⁷ Absent an express warranty or a fraudulent concealment, a landlord in a commercial lease is not liable for any defect in the premises.

South Carolina does recognize the theory of constructive eviction, which dictates that a tenant may vacate the leased premises and stop paying rent if an intentional act or omission of the landlord deprives the tenant of possession or substantially interferes with his enjoyment of the land.⁹⁸

Because at common law a commercial landlord is not responsible for maintaining the leased property, a commercial lease should clearly define the repairs that the landlord and tenant will each be expected to make. In a single-tenant building, the tenant is typically responsible for making all nonstructural and...