The idea behind an easement is good- you grant your neighbor the right to do something on your property that allows him to enjoy his property. Common example- you allow him to drive over a portion of your property to get to his. Both of you know where you mean to let him cross, he’s a good guy and won’t abuse the privilege, so you aren’t very specific on where the easement is located. But what if, after the properties have each been sold several times, a later owner decides he needs to use more of your property to get to his place?
This just came up in a case of mine. The deed granting the easement was fairly specific as to its dimensions, but it referred to a plat that could be interpreted to expand the easement to include all of the original easement grantor’s property. Not only did the parties end up in court, but my client was threatened with violence when he told a worker employed by the other property owner that he could not drive across my client’s front lawn to get to the neighbor’s property.
Be careful to be specific as to the dimensions of any easement that you grant.
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.
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.
- 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.
- 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.
- 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.
- 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.
- 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.
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.
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”.
Many times, businesses have accounts that they cannot collect through informal means, such as calling their customers or writing demand letters. They then seek advice from a lawyer. The problem is that the amount of money at stake often does not justify hiring an attorney to file suit.
If someone owes you or your business a debt in the $500-$1500 range, I can help you file the case in magistrate’s court, where you can try the case yourself. I can help you prepare the paperwork to file the lawsuit and give you some hints about handling the case when it comes to trial. Most often I will only charge you $100 to $150.
I have been told of a time, long, long ago, when it seems that all but the most complex agreements were done “on a handshake”. Back in those days, you could believe what somebody told you and you didn’t have to put the details in writing. A man’s (or a woman’s) word was his or her bond.
I don’t think those days really ever existed.
It has never been a good idea to leave the details of a business arrangement unwritten – that’s one thing that has kept lawyers in business and lawyers have been around for a long time. One of the other party doesn’t have to be a crook – perfectly honest people may have differing memories of the details of a contract. That’s why it always has been important to put your business deals in writing.
The writing doesn’t have to be long or in legalese language. It can be as simple as:
Bobby agrees to sell to Billy, and Billy to buy from Bobby, a 1965 Ford Mustang, serial number 1234567. The purchase price is $10,000, to be paid in cash. Billy buys the car “as is”.
Signed: Billy and Bobby
It’s very tempting to do business with old friends or relatives on a handshake basis. We all do it sometimes, but the better practice is to draw up a simple contract. The best reason is, if your old friend or relative should pass away the day after the deal is made, you don’t know who you’ll be dealing with in trying to get the contract fulfilled. It’s really a favor to everyone to have the deal put in writing.
You can write up a lot of contracts by yourself, but for things like leases or purchases involving a substantial amount of money, it’s worth it to spend $100 or so on a lawyer to draft the contract for you.
Hank is a savvy businessman. A self-made man, he knows the value of a dollar, and cannot be taken advantage of in a normal business deal. However, his big weakness is that he has a generous heart. Especially if you have known him for a while, Hank will lead you some money and is not too strict in making you repay it. Although it has happened several times, Hank is always genuinely surprised when people do not pay him back as they said they would.
It is surprising how many otherwise frugal individuals will lend hundreds or even thousands of dollars to family, friends, employees or business associates without taking any steps to protect themselves. Of course, I’m not talking about gifts. A gift is where you give somebody money and don’t expect to be repaid. I’m talking about where your buddy Joe wants to open a garage and needs $5000 to buy a used hydraulic lift. Or where cousin Sammy finds out about a can’t miss investment opportunity, or where the switchboard operator at your office is going through a divorce and needs rent money. Sometimes you just can’t say no.
If you really do expect to get your money back, you should at the very least get the borrower to sign a promissory note setting out how much money you are lending them, and any terms as far as interest and when they have to pay you back. Unless you include a statement that they have to pay your attorney’s fees if you have to take them to court to collect the money, you will not be able to recover these fees. Also, it doesn’t do any good to get the note signed if you are not going to act promptly to collect the debt. Once they fail to pay as agreed, the Statute of Limitations in South Carolina is three years – so once they failed to pay as agreed, you have a maximum of three years to file a lawsuit to collect the debt, or it’s like you never lent them the money.
A lawyer with experience in diplomatically dealing with debtors to set up an enforceable payment plan is about the best friend you can have when being a Good Samaritan comes back to bite you.
Many people assume that if a person owes you money, they also owe you interest and attorney’s fees if you have to hire a lawyer to collect what is owed to you. This is not true.
In South Carolina, there are only two situations when you are entitled to recover interest and/or attorney’s fees in addition to the principal amount you are owed on a debt. The first situation is when you have a written contract with the other party; in other words, you cannot recover interest or attorney’s fees on an oral contract. If you want to recover interest, the contract must state that if payments are not made on time, interest at a specific rate will be charged on the unpaid balance. If you want to recover attorney’s fees, the contract must state specifically that if you have to hire a lawyer to collect the debt, the other party must pay your reasonable attorney’s fees. What are reasonable attorney’s fees is up to the court.
The second situation is where a statute allows attorney’s fees to the successful party in a lawsuit. One such statute is the Mechanic’s Lien statute (Section 29 – 5 – 10, et seq., SC Code), which allows parties who furnished labor or materials for the improvement of real estate to put a lien on the real estate if they are not paid.
Even if you have loaned a large amount of money to another person and have a written note from that person promising to repay the debt, unless the written note contains language specifically allowing you to recover interest and/or attorney’s fees, you cannot recover them.
Different states have different rules when it comes to debt collections. Some states allow creditors to garnish a debtor’s wages to recover on judgments for things like credit card debt. In South Carolina, your wages can only be garnished for taxes and child support.
Also in our state, if you own and occupy a home, at present the first $56,000 of equity (per owner!) Is exempt from judgment creditors. In other words, if you and your spouse own a home that is worth $400,000 and you owe $300,000 to the bank on your mortgage, your home is protected from your creditors, because you and your wife have another $112,000 in exemptions on top of the amount you owe to the bank.
Some states allow creditors to assert a lien against a debtor’s bank account by serving a levy on the bank, without having to give notice to the debtor. Whatever the debtor has in the bank would be frozen and the creditor would be able to have that money paid over to it to apply toward the debt. Such is not the case in South Carolina. Before a creditor can get access to a bank account, a hearing (with advance notice to the debtor) must be held and a court order obtained to have the money paid toward the debt. Obviously, most debtors, once they receive notice that a hearing is coming, will clean out their bank accounts prior to the date of the hearing, so there will be nothing there for the creditor to get.
A judgment in South Carolina is only good for 10 years – after that it goes away. Some states allow creditors to renew judgments.
A judgment is still a good thing to have, but it does not guarantee that the creditor will get paid.