On this episode, we are joined by Mark Fessler, Deputy Director of Litigation and Training at South Carolina Legal Services. We delve into the complex world of evictions in South Carolina, the legal process, and the challenges faced by low-income renters. Discover the crucial steps to take when facing eviction, the importance of documentation, and how to protect your rights as a tenant. Plus, learn about the resources provided by South Carolina Legal Services to empower renters in their fight for affordable and fair housing.
Learn more about South Carolina Legal Services.
Transcript
Katy Smith: South Carolina consistently has the highest or almost the highest eviction rates in the United States. In 2021, renters had no legal representation in 99% of eviction court proceedings in our state. It is a crisis, and you may be one of the recipients of the nearly 32,000 eviction filings in Greenville County during the last three years.
What are your rights and what should you do if you receive a notice to vacate? I’m Katy Smith with Greater Good Greenville, and on this episode I talk with Mark Fessler, deputy Director of Litigation and Training at South Carolina Legal Services. His practice has focused predominantly on housing and housing law issues facing low income tenants and homeowners.
We’ll link his bio in the show notes. Mark will cover what evictions are, when they can happen, what your rights are as a tenant, and most importantly, what you can do to prevent eviction and how you should respond if you’re served a notice. As a preview, document everything with emails and photos, and don’t delay in your response.
I’m so delighted to be here with you today, Mark. Thanks so much for joining us and for all that you do for South Carolinians.
Mark Fessler: Well, thank you for inviting me. It was, um, a pleasure to get to know about Greater Good Greenville the other day at the, the panel discussion on Tuesday.
Katy Smith: Let’s just begin with the basics. Can you explain what is an eviction and when does it happen?
Mark Fessler: Sure. And that may seem like a, a simple question, but um, an eviction is a legal process like many legal processes. So somebody has to file a lawsuit in a court and that lawsuit has to get served on the defendant, then a judge, you know, adjudicates or potentially a jury could come in and decide questions of fact.
But an eviction is the legal process that a landlord has to use to retake possession of occupied rental property. So in an eviction, the legal question is who’s entitled to possession of the property? And evictions are filed in our lowest level trial court, which is called the Magistrates Court. That’s a countywide jurisdiction.. Court of countywide jurisdiction, and so magistrates typically hear these eviction cases.
Katy Smith: Okay. And if I am a tenant, what will I experience? I might just be hanging out not realizing I’ve violated a term of my lease, or I might be behind on my rent, or I might have had pets that I wasn’t supposed to have. What will be my experience when I know “Uhoh I’ve got a problem.”
Mark Fessler: You know, hopefully you will have gotten, and, and in most cases you should have gotten some sort of advanced notice before it gets into court from the landlord saying, “Hey, this is a problem,” or “You haven’t paid rent, you need to pay up.” But when the legal process starts, you will receive, the tenant will receive what’s called a rule to vacate or show cause.
And that’s a one page form. It’s a little bit difficult to describe. I mean, there’s a lot in there, but it looks like a legal document. If you can think, you know, of a legal document. It’s got a case name, it has a case number, it’s got directions, it’s signed by a judge, you know, things like that. And it’ll basically say, you know, your landlord has said that you have done one of three things. Failed to pay rent, your lease term is over, or you’ve breached your lease. And you know, you have 10 days to either leave the property or to request a hearing to essentially explain why you shouldn’t be evicted. And so what usually happens, the magistrate’s constable will go out to the property and attempt to serve that document on the tenants or some resident at the property, and they’re supposed to make two attempts to serve it in person. If they can’t serve it in person, then the third attempt and final attempt is they mail it to the property. And then the tenant, once served with the rule to vacate or show cause, has 10 days to request that hearing. Most magistrate courts across the state will allow the tenant just to call in, but that’s how it starts.
Katy Smith: Okay. So I imagine that someone knocks at my door and hands me this legal looking paper, or I get it by mail eventually, and I just panic. I have probably a pit in my stomach because I either know that, “oh my gosh, I can’t make rent, I am behind. How will I do this?” Or it feels unjust to me because I’ve done everything I’m supposed to do, I thought. What’s happening? What should my next step be?
Mark Fessler: That’s a good question. The strategy for addressing an eviction really depends on why you’re being evicted. So most of the evictions that we at South Carolina Legal Services see are non-payment of rent evictions. And if there really is no defense to that, you know, hardship is not a defense.
Lack of income is not a defense, you know, and that’s just th e way the, the law is on those kind of matters. You know, you definitely need to respond. I mean, under any of these scenarios, you, you need to respond. The rule says you got 10 days to, to vacate the property or to request a hearing.
And some people think, “oh, well, if I just move out, everything’s good. I don’t need to respond.” But what happens there is you move out of the property, you don’t inform the magistrate, the magistrate will issue a default judgment. At that point, then you have an eviction on your record, uh, so to speak. So you definitely wanna respond if your plan is to move out.
Perhaps you can get the magistrate to mark the cases as settled or dismissed, um, based on moving out. But you want to think about, you know, do, do I have a defense? if it’s a rent dispute where you say, “look, I’ve paid you what I owe you.” You need to get copies of receipts. If you pay through like checks where you can get bank records showing that checks have been cashed, get that.
So you just wanna be able to collect your evidence if you have a defense. Another reason somebody might be evicted is the end of the lease term. And that just means that the lease was for one month, or the lease was for three months or six months or a year. And the lease is expired. Under state law, there is no obligation for either the landlord or the tenant to renew a lease at the end of the lease term. That is limited somewhat by civil rights laws.
So landlords can’t refuse to renew a lease for an unlawfully discriminatory reason. So based on gender, race, national origin, religion, things like that. But by and large, it’s, it’s the same concept as employment at will essentially for housing. You can refuse to renew the lease for, for any reason or no reason whatsoever.
So if you’re being sued based on end of lease term and the lease has actually expired, and that’s the only issue in the case, you know, your plan’s gonna need to be more of, “okay, where am I gonna jump to? Where am I gonna move to,” rather than defending the case because there’s no real legal defense there.
And then the third type of eviction case that’s brought is, uh, the claim that a tenant has breached the lease in some way other than not paying rent. Maybe they have an unauthorized guest or an unauthorized pet, or they’re making too much noise at, you know, unusual hours or something like that.
You want to, again, figure out what kind of evidence you have to prove, you know, your side of the, the case. Because then, when you go to court, uh, when you, when you respond within that 10 day period and go to court, that’s your opportunity to put your case up for the magistrate.
Katy Smith: So those three reasons feel. Kind of black and white. And I suppose in a legal sense they are. But I bet from a tenant’s experience, there’s so much gray, like non-payment of rent. I’ve paid consistently for 9, 10, 11, 12 months, and now here on this 13th month of my new lease, I’m three days late.
Or it starts getting later and later even though I am paying or it’s a subjective matter in my opinion, whether we’ve been very noisy or not. How does all of that show up when folks come to you? Are there gray areas that you can help people through or broker some different thinking about it between the landlord and the tenant?
Mark Fessler: There definitely are gray areas depending on the facts of the case. So, you know, take something seemingly, um, as straightforward as rent. You know, if a landlord has a policy or not even a policy, but just a practice of accepting rent late over and over and over again, then the law can call that something called waiver, which means that, okay, you had a rule that says rent’s due on the first, but you’ve been accepting it on the 10th or the 12th, or the, you know, whatever, and you’ve never told the tenant that that’s improper. You can’t then decide that you’re gonna evict the tenant for all those late payments that you accepted because by accepting the late payment and not telling the tenant, “Hey, if you, if you pay late again, we’re gonna have problems.”
You have waived the right to, you know, seek an eviction on that ground. And so other things can come up with rent payments, um, you know, for example, if a tenant offers to pay the rent and the landlord rejects the rent and says, “no, I’m not gonna accept your rent.” The tenant can, in a legal sense, be deemed to have paid if the tenant tendered the rent timely.
So, you know, sometimes the tenant might tell the landlord, “Hey, I’m gonna be late this month. It’s, I’m not gonna have it by the fifth.” You know, you get a five day grace period under state law automatically, so I’m not gonna have it, you know, by the, by five days after the due date. And the landlord says, “okay, you know, that’s fine. Just get it to me by the seventh.” And then the tenant says, “well, I offered it to you by the seventh, but then you rejected it.” And the landlord says, “no, you offered it to me on the eighth.” And so that could be a fact issue that a court or a jury might have to sort out in a rent case. So even though a lot of the cases we see are the pretty standard non-payment of rent, uh, where there is no defense, there can be issues.
And I’ll also say one other thing on the non-payment of rent. It is a very difficult, stressful time for tenants, especially for the type of people that South Carolina Legal Services represent. We, uh, represent people who are, you know, below 200% of the federal poverty line. And, you know, they are concerned about what’s gonna happen to them, and they don’t really have a lot of money to be able to relocate somewhere that quickly.
But it’s good to, at least from a legal point of view, try to think about legal defenses rather than hardship defenses. Cause something like, I didn’t have the money, or I had another bill that I had to pay that month and therefore that’s why the rent was late. Those kind of things are not legal defenses.
So even if a magistrate did feel sympathetic towards the tenant, legally, the magistrate couldn’t, in almost every case I’ve seen, give the tenant a pass, um, as saying, “okay, because you had a, the car broke. You had to pay $300 to get, you know, that fixed, we’re gonna give you some additional time, you know, to pay the rent.”
That’s unfortunately a hardship of the law that, uh, magistrates can’t ameliorate.
Katy Smith: Gosh. Another thing I have heard tenants say who find themselves in this tough situation is that there is something, uh, seriously wrong with their rental unit. It doesn’t have heat, the running water hasn’t worked, there’s a hole in the roof that’s made them have huge power bills and they have asked for that to be remedied and it hasn’t.
So they’ve decided to withhold rent or they have paid something to be repaired on their own and took it off the bill. How does that shake out then, when a landlord says, “no, that doesn’t count.”
Mark Fessler: Those issues do come up fairly regularly and, and unfortunately we do see the allegations of repairs and repair problems come up at the time when a tenant is facing an eviction for, uh, non-payment of rent or some sort of lease breach. Those are separate issues and they should be kept analytically separate.
For repair issues, one thing that the law absolutely requires in every case before a landlord can be liable for failing to make repairs or perform maintenance, that is the landlord’s responsibility, is that the tenant has to provide notice. Without notice, landlord has no liability. So, I mean, you could have no roof and if the landlord, I mean, he was unaware of that.
Or if the landlord had not been given notice of that, there’s no liability. So notice is a big question and, and then we always ask people, alright, well did you give notice? Yes. Well, how did you give notice? Well, I talked to the maintenance man. Oh, okay, well I don’t know that that’s good notice. So you want to do it in writing, preferably in a way that you can document it.
You know, I like emails, especially if you have the property manager’s email, you know, there you’ve got the email address and you’ve got something in writing that you can keep in your gmail or Yahoo Mail or whatever mailbox you use. So giving notice is important. And also there is no right under state law to withhold rent just because the landlord has not made a repair.
There is a very small exception to that statement. But it’s so difficult to kind of fit into that we just advise people to not withhold rent as a way to try to force the landlord to make repairs. The quick overview of what you need to do is give the landlord notice of the specific issue, and unless it’s an emergency, the landlord has 14 days to fix the problem.
If the landlord doesn’t fix the problem within the 14 day period, then damages might start to attach, or you could terminate the lease and leave if you put in your notice to the landlord, and this has to be a written notice. If you don’t fix it within 14 days, I’m outta here.
Otherwise, if the problem is not fixed, you can go to the magistrate and file your own action and ask the magistrate court to order the landlord to make the repair or to perform the required maintenance.
Katy Smith: So if someone gets a notice to vacate and they, they’re panicked, would their first step be to call South Carolina Legal Services or to hire their own attorney if they can afford to do so?
Mark Fessler: Yes. That’s a, that, that’s a smart move. The sooner you seek out legal advice or you know, somebody who knows what they’re talking about to look at your situation and give you some feedback, the better. What you wanna avoid is situations that we have from time to time where somebody comes to us having already received a writ of ejectment.
And the writ of ejectment is the order from the magistrate court allowing law enforcement to conduct a set out. That means the hearing is already heard, occurred, or the person may be in default. They might not have responded, so they might not have gotten a hearing. And the options in those circumstances are much, much, much more limited.
Katy Smith: I’m hearing that with so many folks struggling to make ends meet, and with our market being so hot, there are a lot of people who are on a month to month lease. Their 12 month lease didn’t get renewed so they’re just in a handshake agreement with a landlord. Should those folks ask for a 12 month lease to secure their position in their home, and are you seeing that have any success?
Mark Fessler: Yes. If you are month to month and you know that you want to stay there long term, asking for a longer lease will give you more security. Absolutely. Month to month leases are a default rule under state law. So state law says that if you have an agreement to rent a place and there’s no agreement about the length of that term… you know, I could be renting from you and you could say, “yeah, I’ve got a place down at, you know, 123 Smith Street and, and I’ll let you crash there for a few days.”
And then a few days turns into a few months or, or longer. And we’ve never agreed on how long my lease term is. State law comes in and says, you’ve got a month to month lease. Same concept applies if you had a written lease to begin with, went for a year and then I just continued renting, continued paying, and the landlord continued accepting rent and there was no further agreement about the lease term.
State law says that becomes a month to month tenancy, and so it’s entirely legal under state law to have a month-to-month tendency, and there’s nothing requiring a one lease to my knowledge, outside of a person who is on a housing choice voucher or is using a housing choice voucher. If you have a voucher, then the first year of that voucher tenancy has to be written, has to be a year, but even those can go month to month after that, that first lease is up.
Katy Smith: Mark, maybe you can just give us some tips for folks who are facing an eviction that they can follow to hopefully get to stay where they are and have a good outcome for their case.
Mark Fessler: Yeah, absolutely. And you know, each case is different and there’s no magic bullet. Unfortunately. The things I typically tell people are to be informed. You know, read your lease, read your house rules, you know, take a look at some resources that South Carolina Legal Services has on the internet. We have some online classrooms, so if you google “SC Legal Services online classrooms,” you’ll come up with those.
And one of those is, uh, residential eviction defense, and it will walk you through all of the reasons why you can be evicted, how court works, it’ll talk about potential for mediation if you’re in Greenville. Um, and, and a lot of other things you’ll want to know. South Carolina Legal Services also has videos.
A lot of videos on our YouTube. One is called “Rent Smart.” So it talks about some of the renter’s rights that we’ve talked about on this podcast today and others. Um, it talks about how to protect your housing choice voucher. We have a video on that. Talks about how you can appeal a eviction that goes against you to the circuit court.
So we have a lot of good resources, so, so being informed and trying to figure out the rules, which again, is not, you know, a small order. So I’m not saying it’s gonna be something that happens overnight. Um, but at least reading your lease and being familiar with, with what that does or doesn’t allow is, is one thing.
If you’re having problems with the landlord, either you’ve requested repairs and they’re not being made or they’re being made shoddily, um, you’re trying to pay and you’re getting the runaround because the office is always closed or the online portal’s not working or you know, things like that. These things could be defenses.
Things that you need to be able to present to a court. So you want to document and you want to keep records, keep proof of payment. Property conditions have photographs of what the unit looks like from time to time. So if the landlord comes in and says, “well, you punched this hole in the wall,” you’re like, “no, it was actually there when I moved in.”
You know, take photographs when you move in. But document what happens, especially when you start to sense that things are sliding away or, or getting away from you. Don’t wait till the end to plan. You always want to have a worst case scenario planned. Um, you don’t want to try to be planning for what happens at the time you get the writ of ejectment. Plan for the worst, hope for the best. And finally I would say, you know, be reasonable. When you go to court, judges, they hear a lot of these cases. This is your only case, but the judges have heard many other cases and they want both parties to act reasonably.
So just, just think about what, what’s the reasonable outcome here? Who’s acting reasonably? And that’s kind of a, a good guiding principle to have just in general.
These situations are inherently emotional. The judges understand that. Uh, but there’s a difference between, you know, emotion and just lack of control. That lack of control does not, or, or being overly aggressive, un needlessly aggressive, does not serve you well. And you know, the landlords act unreasonably.
Um, and, and I don’t think it serves them well, you know.
Katy Smith: Right, right.
Mark Fessler: That’s a rule that goes both ways.
Katy Smith: Yeah. And I, I wanna underscore like the, I can’t imagine how stressful the situation is. Which makes it all the more important that South Carolina Legal Service is here to help. Because I know that a lot of folks that I’ve spoken to have benefited so much from your organization’s help and from your help personally, to have an ally who can provide technical support, but also really emotional support during this difficult time.
We’re so grateful that you’re here and that you’re here on this podcast to help educate.
Mark Fessler: Well that’s, that’s very kind to you to say and we appreciate it. And I’ll just say for anybody who may need to apply or knows somebody that wants to apply for our services, we have two ways to do that. Scls.org is our website and there’s a, an apply here button right on the homepage. The most common way people apply is through our telephone intake line, and the phone number for that is (888) 346-5592.
They’re open Monday through Thursday, nine to six.
Katy Smith: Awesome. And we’ll put links to all of this on our website and we’ll also put some links to, um, some other resources that can help put you in a better position to possibly not have to avoid eviction, like partners at Self-Help Credit Union, who can help you get banked and begin to get an emergency savings account in place and some other things to shore up your financial situation. Let’s close by just saying that if you are in a pinch with this right now, you’re not alone because housing is extremely difficult to find that is affordable, especially if you are making low wages. And I know a report just came out yesterday that talks about this.
Mark, can you share some of that information with folks?
Mark Fessler: Yeah, absolutely. Uh, the report I think you’re referring to is a report issued annually by the National Low Income Housing coalition. And they, you know, study data from across the country. So it’s a nationwide report, but it does break down, uh, on a state by state basis. Two of the key points that they mentioned in there, the one that came out just the other day, is that, the report finds that the lowest income renters in the US are facing a shortage of 7.3 million affordable and available rental homes, and that between 2019 and 2021, this shortage increased 500,000 rental homes.
Katy Smith: Oh my gosh.
Mark Fessler: The problem is not getting better, it’s getting worse. And then they also look at the problem as, as associated with people who are defined as extremely low income. That’s generally defined as people whose income is 30% of the area median income. And for those individuals, they look at, okay, from the population that is extremely low income, how many available affordable rental units are there?
And those affordable rental units are gonna be subsidized units. But in South Carolina, for every 100 extremely low income households, there are only 42 available rental units that they can rent at an affordable, which means 30% of their, uh, monthly income, at an affordable level.
Katy Smith: Gosh, and just to make sure everyone knows what we’re talking about when we say extremely low income, these are still folks that are working in many cases, if not all cases. A lot of them are working at the deli, they’re working in fast food, they’re working in retail, they’re working at gas stations.
They’re the people who make our community work but the wages are not matching up with the housing that’s available.
Mark Fessler: Yes, absolutely. Rents are, are definitely outpacing income.
Katy Smith: Yeah, yeah. Well, Mark, thank you again so much for being here and for all the work of you and your colleagues at South Carolina Legal Services, and we’re so pleased to share the abundant resources that you have in the show notes from today’s page.
Mark Fessler: My pleasure. Thanks for inviting me.
Catherine Puckett: Simple Civics: Greenville County is a project of Greater Good Greenville. Greater Good Greenville was catalyzed by the merger of the Nonprofit Alliance and the Greenville Partnership for Philanthropy. You can learn more on our website at greatergoodgreenville.org. This is a production of the Greenville Podcast Company.
Image via Michael Burrell on Canva.
