Archive for 2015

Landlords – Document Your Files

Most – but not all – magistrates are sympathetic to landlords who are dealing with tenants who do not pay their rent on time. As long as landlord has good documentation that they have provided the proper notice to their tenants, they have a good chance of succeeding in an eviction action.


Failure to pay rent – The most important thing a landlord can do to help enforce timely payment of rent is to include in the lease contract the language required in Section 27 – 40 – 710 (B), South Carolina Code. This language must be in conspicuous language and must state the following or something very similar:

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.

Since the above is the language used in the statute, there is no reason not to use it in your lease. It is advisable to use all caps and/or to use bold print with this language so as to make sure it is conspicuous. If your lease contains this language, and your tenant is more than five days late, you can terminate the lease and evict the tenant. Otherwise, you need to send one written letter, again with substantially the same language as above, warning the tenant that if they are more than five days late with their rent again, they will be evicted.


Violations other than nonpayment of rent – If the tenant violates the lease in a way other than nonpayment of rent, such as playing unreasonably loud music, failure to keep the premises clean or having too many people living in the unit, the landlord should deliver a written notice to the tenant setting out the violation and giving the tenant 14 days to correct the violation. If the violation is not at least in the process of being corrected within those 14 days, the landlord can evict the tenant. Again, the key is to be able to prove that you delivered the notice. Either have someone else deliver it so that they can testify that it was handed to the tenant, deliver it yourself with an another witness who can testify they saw you hand it to the tenant, or send a letter return receipt requested so that you have proof that it was sent.


Violations of the law – Sometimes you will have a tenant who is carrying on illegal activities or activities contrary to public health and safety. Perhaps the most common example of this is the tenant who is selling drugs out of the rental facility. The easiest way to deal with this situation is to have the authorities investigate, but this is not always possible. Particularly when the tenant’s activity poses a danger to other residents, the landlord does not have to wait the 14 days after giving notice but may immediately move to have the tenant evicted. It is always wise to at least have some written statements in your file from neighbors stating that they have observed the illegal activity before starting the eviction.


Can A Tenant Withhold Rent Due To Poor Living Conditions?

Tenants assume that they can withhold rent if there are unsatisfactory conditions in their house or apartment. This makes sense, but it is not the law in South Carolina.

The landlord tenant law provides that the tenant must give the landlord written notice to address unsatisfactory conditions within 14 days, or the rental contract will be terminated. Unless the landlord at least makes a start toward addressing the problem within the 14 days, the tenant can then terminate the lease, move out and find somewhere else to live, without paying any future rent until the original lease term expires.

Another statute states that the tenant, again after written notice to the landlord, can obtain reasonable amounts of essential services (water, heat, etc.) and then discount the cost of those services can be credited against the rent that is due. For example, if the lights or heat go out, the tenant can obtain the utility service and take credit for that charge against the rent. Written notice still needs to be sent to the landlord.

The law makes clear that the tenant is not authorized to make repairs on the landlord’s behalf, even after written demand. And nowhere does law say the tenant can withhold rent if the landlord refuses to address unsatisfactory conditions in the rental facilities.


Should I Sue This Debtor?

You should not file a lawsuit every time somebody fails to pay you some money that they owe you. Ridiculous example – We are at lunch and I ask you to lend me five dollars for a sandwich, and tell you that I will pay you back. I don’t pay you back. You wouldn’t sue me – you just wouldn’t lend me any more money.

Here are some questions you should answer before you think about filing a lawsuit.

  1. Is there enough money at stake? Even if you handle the case yourself, it seems like $500 is about the minimum where it makes financial sense to file a suit. If you’re going to get a lawyer involved, $2000 is about the minimum where someone would take the case.
  2. Is the debtor still around? Sometimes the reason you don’t get paid is that the debtor has left town or has gone out of business. One of the big issues is whether or not you or your lawyer can find a good address on the debtor so he or she can be served with the lawsuit.
  3. Does the debtor have anything you can collect from? South Carolina is a debtor friendly state in that there is no wage garnishment for debt collection and there are numerous exemptions that shield a debtor’s possessions from collection by creditors. Unless you are just suing as a matter of principle, it is worth knowing whether the debtor has any assets from which recovery can be made.
  4. Will the debtor file a counter suit? Even if your lawyer agrees to pursue your claim on a contingency basis, if the debtor counterclaims against you for such things as quality of product or nonperformance of your duties under the contract, your lawyer will want to be paid by the hour for defending the counterclaim. If the debtor has already threatened to sue you if you sue him, you ought to assume that he will make good on his threat and that this will cost you more money.
  5. Do you ever want to do business with this debtor again? Many times the answer is no. But if you ever hope to do business with this debtor in the future, suing them will pretty well guarantee that won’t happen.

Good lawyers ask these questions before ever agreeing to take your case. Don’t get mad at them – they are just doing their job.


Would You Put That In Writing?

Several years ago, I tried a custody case where the husband used crude, abusive and offensive language in texts to my client, his wife. We printed out the texts and, when the husband took the stand, I had him read the worst of them to the judge. The judge’s ruling in favor of my client was based largely on his disgust with this abusive language and what it told him about how the husband would portray his wife to their children. Emails and other social media have been used as evidence in other types of cases as well – a picture truly is worth a thousand words.

People seem to forget that emails, texts, pictures and YouTube videos are potentially just as permanent and damaging evidence as letters or other written documents. Maybe it’s because you can delete them from your computer or phone. They just don’t seem as permanent as something you put on paper. But unless the recipient deletes them as well, they can be put into evidence for the judge, jury and everyone else to see and they can be devastating.

So if you are my client, don’t send abusive emails or texts. For goodness sake, don’t publish unflattering pictures or videos. Of course, if you are on the other side, by all means type or film exactly what you feel – you’ll make my job a whole lot easier.


Why Cut A Deal?

An old legal proverb says, “A decent settlement is better than a good trial”.

Why would it ever be better to settle a case for less money than you think you can get a trial?

Reason one: The operative phrase in the sentence above is “… think you can get…”. You don’t know how a trial is going to come out. Your lawyer can try great case – you can be a great witness – your opponent can get on the stand and sound like a buffoon. 11 people on the jury can want to give you $1 million. But if just one juror doesn’t like you for some reason, you can wind up with zero. You just never know.

Reason two: Trials are expensive and are physically and mentally draining. Example: Your opponent offers you $6000 before the trial starts; you turn it down because after your lawyer takes his one third fee, you’ll only get $4000. The trial starts on Monday; you can’t sleep the night before. The trial lasts two days (you don’t feel like eating or sleeping Monday night). You miss two days of work and lose $500 in salary. The jury gives you $7500. Your lawyer takes his 1/3 fee, plus $500 in witness fees and other trial costs. You get $4500, but you only net $4000 because of your lost salary. Do you feel better, or worse?

Reason three: Getting a judgment doesn’t mean collection. The scenario in Reason two above gets even less inviting when you realize that a $7500 judgment still has to be collected. What if your opponent is penniless and therefore “judgment proof”, but was going to borrow the $6000 that he offered you in settlement from his grandmother because he was afraid of going to trial? Once he realizes that you can’t collect the judgment against him, it may just sit there for 10 years and you will get nothing.

If your lawyer recommends a settlement, it’s usually because he or she has been through the above scenarios and seen that clients often wish they had settled beforehand once their trials are over. As nice as it would be to be able to punish the worthless so-and-so on the other side, you should remember another old proverb – “A bird in the hand is worth two in the bush”.