Eviction, Litigation, and Fees—Oh My!
Can Landlords Recover Legal Fees from Tenants in South Carolina?

By: Eric Pettis – South Carolina and Pennsylvania Licensed Attorney with Brownlee Whitlow & Praet

    Landlord-tenant legal disputes oftentimes raise the question of whether the landlord can recover attorney’s fees and costs (i.e., legal fees) from the tenant. Landlords may incur legal fees incident to eviction proceedings or defending against a tenant-initiated lawsuit against the landlord. Common landlord options for recovering legal fees from tenants in South Carolina are reviewed below.

Recovering Fees by Judgment vs. Assessment
In South Carolina, landlords may recover legal fees from tenants only if authorized by law and/or a contractual provision (e.g., lease). If authorized by South Carolina law, a landlord may recover legal fees via judgment (i.e., court order). If authorized by the lease, a landlord may attempt to directly assess legal fees to the tenant without a court order, taking a position such as that the lease provides for the tenant to bear the landlord’s legal fees under certain circumstances.

Court-Awarded Fees
To recover legal fees through a court judgment, the landlord or their attorney may request that the court require the tenant to cover these costs, either by making an oral motion during a hearing or by filing a written motion with the court. If granted, the judge may issue an oral award of legal fees at the conclusion of the hearing, or alternatively, issue a written order after the hearing has concluded.

Direct Assessment of Fees
Landlords may also attempt to directly assess legal fees to the tenant if/when:
1. The landlord has already paid the fees to the court or to the law firm for legal services / costs;
2. The fees / costs are provided for by the terms of the lease and/or South Carolina law; and
3. (in eviction cases) a hearing occurred, and the court ruled in favor of the landlord.

Legal Grounds for Recovering Attorney’s Fees
As previously mentioned, whether a landlord requests the court for an award of legal fees or decides to directly assess the fees to the tenant, this must be authorized by South Carolina law or a provision in the lease. Below is a list of relevant provisions under the South Carolina Code of Laws that outline scenarios in which landlords may seek or assess legal fees:

• • • Section 27-40-640: If a tenant raises a defense or counterclaim in an eviction proceeding that is “meritless and is not raised in good faith,” the landlord may recover reasonable attorney’s fees.
    • Section 27-40-710: If a tenant’s noncompliance with the lease is “willful” (other than nonpayment of rent), the landlord may recover reasonable attorney’s fees when represented by an attorney.
    • Section 27-40-750: After a tenant wrongfully terminates the lease, the landlord has a right to possession, rent, and “a separate claim for actual damages […] and reasonable attorney’s fees.”
    • Section 27-40-770: If a tenant remains in possession of the premises after the lease expires without the landlord’s consent, and the holdover is deemed “not in good faith” or a “willful violation” of the lease or law, the landlord may recover reasonable attorney’s fees.
    • Section 27-40-780: If a tenant “refuses to allow lawful access” by the landlord to the premises, the landlord may seek injunctive relief and recover reasonable attorney’s fees.
    • Section 27-40-910: If a landlord lawfully files for eviction and the tenant raises a meritless defense based on an unfounded retaliation claim, “the landlord is entitled to reasonable attorney’s fees.”
    • Section 15-36-10: If a lawsuit is deemed “frivolous” under the South Carolina Frivolous Civil Proceedings Sanctions Act, and the landlord is the prevailing party in the proceeding, the landlord may be awarded “reasonable costs and attorney’s fees.”

General Considerations for Landlords
To increase the likelihood of successfully recovering attorney’s fees, landlords may consider the following:
1. Set Forth Clear Terms in the Lease: Ensure the lease explicitly states when and how attorney’s fees and other court costs may be assigned to the tenant.
2. Document Legal Expenses: Maintain detailed records of all legal expenses and court costs incurred in connection with filing an eviction against a tenant or any lawsuit filed by the tenant against the landlord or property management.
3. Follow Proper Legal Procedure: Charge tenants legal fees only when they are either awarded by the court or explicitly authorized under South Carolina law or the terms of the lease.
4. Consult Legal Counsel: When in doubt, consult counsel regarding what legal fees may be requested from a judge or directly assessed to the tenant to ensure compliance with South Carolina law and the lease.

Summary
In South Carolina, landlords may recover legal fees from tenants, but successfully recovery involves an informed understanding of the laws and lease terms authorizing such fees. By ensuring the law and lease authorize charging tenants legal fees, maintaining detailed records of paid legal expenses, and following proper collection procedures, landlords can mitigate the financial burden of legal fees incurred in enforcing their rights against tenants.

This article is written as a general review, so if/when you may have inquiries regarding specific implementation of law and/or lease language regarding legal fees in South Carolina, consider contacting a South Carolina-licensed attorney for further review and discussion of what options may be available to you.

*The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information in this article is for general informational purposes only. Information in this article may not constitute the most up-to-date legal or other information. Viewers of this material should contact their attorney to obtain advice with respect to any particular legal matter. No viewer of this material should act or refrain from acting on the basis of information in this presentation without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.  Use of, and access to, this article does not create an attorney-client relationship between the reader and Brownlee Whitlow & Praet, PLLC or any contributing law firms. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.