What does the landlord have to do before filing an eviction lawsuit?
A landlord must properly terminate your lease before filing for an eviction. The rules for properly terminating a lease are found (1) in the lease itself; (2) in the South Carolina Residential Landlord Tenant Act; and (3) possibly in federal law for dwelling units that receive a financial subsidy from an agency of the federal government.
Terminating a lease usually just means that the landlord must give you a proper notice. The kind of notice that the landlord must give you depends on the reason that the landlord wants to terminate the lease. Remember, there are only three reasons for a landlord to evict (see prior Lesson). This means there are only three reasons why a landlord should send you a lease termination notice. If you have failed to pay rent you are entitled to one five (5) day notice. If the landlord does not want to renew your lease you might be entitled to a notice. And if you have you have breached the lease in a material way, you likely are entitled to a notice.
NON-PAYMENT OF RENT
If you do not pay rent when rent is due, or within 5 days after the due date, the landlord must give you one written notice that you have not paid rent and that (s)he intends to terminate the rental agreement if the rent is not paid within 5 days of the due date. This is called a "5-day notice." The landlord is requried to give only one 5-day notice during the entire time you reside at the unit. You are not entitled to a 5-day notice for every month you fail to pay rent when due. A landlord satisfies the requirement to give this 5-day notice if your lease includes the following statement or a statement that is substantially equivalent to it:
"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."
END OF LEASE TERM
If the landlord wants to terminate your lease because you are at the end of your lease term, the landlord might or might not have to give you a notice. First, check your lease. If your lease says when it will end and does not say something like “this lease will automatically renew,” then your lease ends when it says it ends. If you stay in the dwelling unit after your lease ends, then you become what state law calls a “holdover tenant.” This just means that you are holding over past the end of your lease. The landlord must sue to evict a hold over tenant like any other tenant. But if you holdover in bad faith, the landlord can ask the Court to order you to pay up to three (3) months rent plus attorney fees as a penalty. So, if your lease is coming up, do not assume that it will automatically renew. It is best to talk to the landlord and agree to a new term before the current lease term ends. Also, some landlords require you to let them know one or two months ahead of time if you are going to renew or not renew. This requirement should be written into your lease if it exists.
If you are a month to month tenant, your lease continues to renew until you or your landlord terminates it for good with a thirty-day written notice that the lease will not be renewed. If you rent a room week to week, then your lease continues to renew weekly until you or your landlord terminates it with a seven-day written notice.
MATERIAL BREACH OF THE LEASE
A landlord might want to end the lease because you did something that breaches the lease, violates your obligations as a tenant under the Residential Landlord Tenant Code, or damages the physical condition of the property. To terminate your lease in these situations, the landlord must give you a written notice telling you what you did wrong and giving you fourteen (14) days to fix or cure the breach first. This is called a 14-day right to cure notice. If you fix, or “cure” in other words, the breach, then the lease continues. If you do not fix or “cure” the breach, then the lease terminates, and the landlord can file for an eviction. Also, if the breach requires repairs in order to cure the breach, you must complete the repairs within the 14-day window. Or, if the repairs are likely to take more than fourteen (14) days, you must start the repairs and pursue them in good faith during the 14-day window and complete them within a reasonable time thereafter.
If you breach the lease in a way that threatens health and safety, the landlord can require you to repair, replace, or clean the damaged item as quickly as conditions require if it is an emergency. If it is not an emergency, you must repair, replace, or clean the damaged item or items that threaten health and safety within 14 days after written notice from the landlord. If you do not repair, replace, or clean the damaged item as quickly as required, in the case of an emergency, or within fourteen (14) days after written notice in non-emergencies, the landlord can terminate the lease and sue for eviction.
HOWEVER, the landlord does not have to give a 14-day right to cure notice (1) where you fail to pay rent or (2) where you are conducting illegal activities or permitting illegal activities in your dwelling unit.
There are other notices that must be given to tenants who breach a lease and who occupy Section 8 or Public housing. These notices go beyond the scope of this Classroom. You should consult an attorney who can assess whether you have received all required notices under federal law if you or the place where you live receives a financial subsidy from the federal government.