Huggins Peil partners with Evictly to serve Bad Tenant notices, in accordance with the law and on our law firm’s letterhead so the Bad Tenant knows that you engaged an actual LAW FIRM and not a real estate agent looking to make a few extra bucks. We then file suit, have a registered process server personally deliver the lawsuit to your tenant, and then negotiate the Bad Tenant’s exit. Historically, half of our cases have resolved at this step.

See the process for Georgia, South Carolina, and Florida:

The Eviction Process in and around the Atlanta, Georgia metropolitan area (Clayton, Cobb, DeKalb, Fulton, and Gwinnett Counties).

EVICTION PROCESS IN GEORGIA – GUIDE ON HOW TO EVICT A TENANT IN GEORGIA

Step 1: Understand the Georgia Laws on Dispossessory Proceedings (Evictions).

Georgia law prohibits the use of “self-help” remedies to remove a residential tenant. See O.C.G.A. § 44-7-55. The only two ways to lawfully eject a tenant are (1) with the tenant’s consent; or (2) by court order. No matter what your lease says, if a tenant refuses to leave, your only option is to take the tenant to court. Failure to do so can result in criminal charges, as well as civil liability (including punitive damages for trespass) for any damage done to the tenant’s personal property.

There are three legal bases for evicting a tenant: (1) the tenant is holding over for the term of the lease; (2) the tenant fails to pay rent when it becomes due; and (3) the tenant is a tenant “at will” or “at sufferance,” and the landlord desires possession of the property back. O.C.G.A. § 44-7-50.

The first two are pretty self-explanatory. The last provision, especially regarding a tenant at sufferance, includes tenants who have materially breached a lease provision, but have refused to leave. Who are tenants at sufferance? The provisions of the lease control, but they include tenants who have:

Committed lease violations – (not rent related);
Allowed unauthorized pets in the home;
Allowed unknown occupants in the home, in violation of the lease;
Significantly damaged the property, in violation of the lease;
Committed crimes in violation of the lease; and
Are former owners of the property that remain in possession after a foreclosure;

Can a tenant deduct repairs from the rent paid?
No. In Georgia, the tenant’s obligation to pay rent and the landlord’s obligation to make repairs are independent of one another—a failure to repair does not in any way work a forfeiture of the rent. Instead, the tenant has to sue the landlord for recoupment. Lewis & Co. v. Chisholm, 68 Ga. 40, 46 (1881). Only where the repairs work a constructive eviction would a tenant not be obligated to pay rent.

How long does it take to evict a tenant?  How long is the eviction process?
As short as 14 days in some instances, but as long as 2-3 months in other cases.

Can I turn off the utilities if the tenant doesn’t pay the rent?
Any landlord who “knowingly and willfully … suspend[s] the furnishing of utilities [heat, light, and water service] to a tenant . . . shall, upon conviction, be assessed a fine not to exceed $500.00.” O.C.G.A. § 44-7-14.1.

Can I change the locks if the tenant does not pay the rent?
If your lease is for a residence, never. If it is a commercial lease, the landlord can do this if the lease specifically allows it, and it can be accomplished without disturbing the peace.

Step 2: Demand for Possession

This is the most important part of the eviction process.  Unless you have first made a demand for possession from your tenant, you are not able to file a dispossessory affidavit. The content and timing for demands vary based upon the reason for evicting. If the tenant is holding over, demand must be made after the end of the lease, but before filing the eviction. If the landlord wants to evict a tenant for nonpayment of rent, the demand cannot be made until after the due date.

The demand does not carry any special form, but must clear, unequivocal, and must give the tenant a reasonable opportunity to voluntarily surrender the premises.

Step 3: Filing and Serving the Dispossessory Affidavit

The third step is straightforward. The landlord, his agent, or his attorney must make a sworn affidavit (i.e., a document that signed by a notary or other official witness, such as a clerk or a judge) that identifies the tenant, which of the three grounds for eviction are being asserted, states that a demand for possession has been made and the tenant has refused, alleges any amounts due, and prays for the amounts due to be paid.

The affidavit, along with a summons, must be served upon the tenant either personally, or tacked and mailed. If the marshal or your process server utilizes tack and mail service, the Court does not have the ability to award you any money, only quasi-in-rem jurisdiction to issue a writ of possession and have the tenant evicted.

Step 4: Default Judgment or Trial

If the tenant fails to answer within seven (7) days after being served, the landlord is entitled to a default judgment, and a writ of possession instanter (meaning as soon as the marshals office can effect it).

If the tenant answers and demands a trial, the matter proceeds to trial. When you arrive at court, you will go directly to the courtroom identified on your notice of hearing. When your eviction case is called, you will approach the bench and the judge will ask you to explain the case. Sometimes, tenants (defendants) don’t even bother to show up, but some do and it’s becoming increasingly popular for tenants to hire attorneys to represent them in eviction cases. The tenant may have no real defense, but the lawyers may work to prolong the eviction as long as possible giving their clients (your tenants) the longest period of time possible (free rent) in your property.

An experienced attorney can advise you on the most expedient course of action. After hearing arguments from both sides, the Judge will issue a Judgment. If the verdict is for the Plaintiff (property owner), the Judgment will typically allow the tenant seven (7) days to vacate the property or appeal the Judgment.

From here, the tenant can do one of three things:
1.         The tenant can vacate the property and return the keys. In which case on the eighth day after the Judgment, you go to the property and change the locks.
2.         The tenant can NOT vacate the property. See “Step 5(a): Writ of Possession” below.
3.         The tenant can NOT vacate the property and file an appeal. See “Step 5(b): Second Trial – Appeal to Superior or State Court” below.

Step 5(a): Writ of Possession

If the tenant has an Eviction Judgment ordering them to vacate and they do not leave, you must file a Writ of Possession with the clerk of court. This is essentially asking the marshal or sheriff to go out to the property and ask the tenant to leave. What actually happens is that official will drive to the property and put a note on the door announcing the date that the tenant will be forcibly set out of the home.

The bad news with writs of possession is that the marshal or sheriff will only help to forcibly remove the tenant. The landlord is personally responsible for removing all of the tenant’s personal items and placing them on the curb. The marshals will not wait indefinitely. In most jurisdictions, the landlord will have roughly one (1) hour to remove everything that is left in the home. If you have a large unit, make sure to hire a moving company or bring plenty of help the day of the set out.

Step 5(b): Appeal to Superior or State Court

A tenant has seven (7) days to appeal a dispossessory judgment (which is why judgments at trial do not typically take effect for seven (7) days). Once an appeal is filed, the case is transferred to the Superior Court or State Court for a trial “de novo.”

Once the matter is transferred to the Superior or State Court, a new trial must be had “de novo.” De Novo is Latin term meaning “starting from the beginning, anew.” In layman’s terms, it is a complete do over. It can often take as many as six months for even experience attorneys to get hearings. Your attorney may be aware of motions that can be filed forcing the tenant to pay rent into the court or vacate until the final hearing.

The entire trial will be redone but, unlike the Magistrate Court, the trial must be conducted in accordance with the Georgia Civil Practice Act and the Rules of Evidence. The tenant may even request a trial by jury. The State and Superior Courts expect everyone to know everything an attorney knows (including not complex trial procedures such as voir dire, the process for selecting a jury) and it can get very complicated. The court will not help property owners or the tenants with legal or procedural questions and are known for not being tolerant of mistakes.

At the conclusion of the trial, the judge or jury will issue a verdict, then the judge will reduce that verdict to a judgment. If the verdict is for the property owner, the judgment will allow the tenant seven (7) days to vacate the property or appeal the judgment, and will order any monies paid into the registry of the court to be disbursed.

From here, the tenant can do one of three things:
1.         The tenant can vacate the property and return the keys. In which case on the eighth day after the judgment, you go to the property and change the locks.
2.         The tenant can NOT vacate the property. See “Step 5(a): Writ of Possession” above.
3.         The tenant can NOT vacate the property and file an appeal. Any appeal would be to the Georgia Court of Appeals. This is exceptionally rare, as the cost of appeal to that Court is burdensomely high for most tenants. Appeals to that court is usually reserved for commercial landlord tenant disputes where tens and hundreds of thousands of damages for rent are at issue. If your case has reached this point, you almost certainly need an attorney.

Select Provisions of Georgia Law Pertaining to Dispossessory Proceedings:

2018 Georgia Code
Title 44 – Property
Chapter 7 – Landlord and Tenant
Article 3 – Dispossessory Proceedings

§ 44-7-50. Demand for possession; procedure upon a tenant’s refusal; concurrent issuance of federal lease termination notice

(a) In all cases when a tenant holds possession of lands or tenements over and beyond the term for which they were rented or leased to such tenant or fails to pay the rent when it becomes due and in all cases when lands or tenements are held and occupied by any tenant at will or sufferance, whether under contract of rent or not, when the owner of such lands or tenements desires possession of such lands or tenements, such owner may, individually or by an agent, attorney in fact, or attorney at law, demand the possession of the property so rented, leased, held, or occupied. If the tenant refuses or fails to deliver possession when so demanded, the owner or the agent, attorney at law, or attorney in fact of such owner may immediately go before the judge of the superior court, the judge of the state court, or the clerk or deputy clerk of either court, or the judge or the clerk or deputy clerk of any other court with jurisdiction over the subject matter, or a magistrate in the district where the land lies and make an affidavit under oath to the facts. The affidavit may likewise be made before a notary public.

(b) If issued by a public housing authority, the demand for possession required by subsection (a) of this Code section may be provided concurrently with the federally required notice of lease termination in a separate writing.

2018 Georgia Code
Title 44 – Property
Chapter 7 – Landlord and Tenant
Article 3 – Dispossessory Proceedings

§ 44-7-55. Judgment; writ of possession; landlord’s liability for wrongful conduct; distribution of funds paid into court; personal property

(a) If, on the trial of the case, the judgment is against the tenant, judgment shall be entered against the tenant for all rents due and for any other claim relating to the dispute. The court shall issue a writ of possession, both of execution for the judgment amount and a writ to be effective at the expiration of seven days after the date such judgment was entered, except as otherwise provided in Code Section 44-7-56.

(b) If the judgment is for the tenant, he shall be entitled to remain in the premises and the landlord shall be liable for all foreseeable damages shown to have been caused by his wrongful conduct. Any funds remaining in the registry of the court shall be distributed to the parties in accordance with the judgment of the court.

(c) Any writ of possession issued pursuant to this article shall authorize the removal of the tenant or his or her personal property or both from the premises and permit the placement of such personal property on some portion of the landlord’s property or on other property as may be designated by the landlord and as may be approved by the executing officer; provided, however, that the landlord shall not be a bailee of such personal property and shall owe no duty to the tenant regarding such personal property. After execution of the writ, such property shall be regarded as abandoned.
2018 Georgia Code
Title 44 – Property
Chapter 7 – Landlord and Tenant
Article 3 – Dispossessory Proceedings

§ 44-7-58. False statements in affidavit or answer; penalty

Anyone who, under oath or affirmation, knowingly and willingly makes a false statement in an affidavit signed pursuant to Code Section 44-7-50 or in an answer filed pursuant to Code Section 44-7-51 shall be guilty of a misdemeanor.

2018 Georgia Code
Title 44 – Property
Chapter 7 – Landlord and Tenant
Article 1 – In General

§ 44-7-14.1. Landlord’s duties as to utilities

(a) As used in this Code section, the term “utilities” means heat, light, and water service.

(b) It shall be unlawful for any landlord knowingly and willfully to suspend the furnishing of utilities to a tenant until after the final disposition of any dispossessory proceeding by the landlord against such tenant.

(c) Any person who violates subsection (b) of this Code section shall, upon conviction, be assessed a fine not to exceed $500.00.

Disclaimer: The law is constantly changing and there may be times when the information on this web site will not be current. This information is provided for general informational purposes only and is not intended as legal advice. This information is not a comprehensive treatment of the subject and is not a substitute for advice from an attorney.

The Eviction Process in Miami and Miami-Dade County, Florida.

EVICTION PROCESS IN FLORIDA – GUIDE ON HOW TO EVICT A TENANT IN FLORIDA

Step 1: Understand the Florida Laws on Proceedings for Possession (Evictions).

Florida prohibits the use of self-help evictions, Sheradsky v. Basadre, 452 So. 2d 599, 603 (Fla. Dist. Ct. App. 1984), and provides four ways a landlord can recover possession of a residential unit: (1) in a civil action for possession; (2) if the tenant voluntarily surrenders possession; (3) if the tenant completely abandons the rental unit; or (4) the tenant dies, and certain legal conditions are met. No matter what your lease says, if a tenant refuses to leave, your only option is to take the tenant to court. Failure to do so can result in criminal charges, as well as civil liability (including punitive damages for trespass and wrongful eviction) for any damage done to the tenant’s personal property.

Most landlords will have to initiate a civil action to recover possession, and the basis for that civil action will be controlled by the lease. However, the most common grounds for maintaining an action for possession of the rental unit are listed below:

Tenant failed to pay rent on time;
Tenant is holding the lease over the term;
Committed lease violations not related to rent, such as unauthorized pets in the home;
Allowed unknown occupants in the home, in violation of the lease;
Significantly damaged the property, in violation of the lease and/or the minimum standards set by Florida law (Fla. Stat. § 83.52);
Committed crimes in violation of the lease; and
Are former owners of the property that remain in possession after a foreclosure.

Can a tenant deduct repairs from the rent paid?
Florida law requires a landlord to keep the premises in good repair. Where a tenant has provided the landlord with at least 20 days of notice that the premises are “wholly untenantable,” and the landlord has refused to make repairs, the tenant may withhold rent. (Fla. Stat. § 83.201).

How long does it take to evict a tenant?  How long is the eviction process?
As short as 15 days in some instances, but as long as 2-3 months in other cases.

Can I turn off the utilities if the tenant doesn’t pay the rent?
Florida prohibits retaliatory conduct, and turning off utilities can be considered retaliatory conduct in certain circumstances. It is never a good idea to do this.

Can I change the locks if the tenant does not pay the rent?
No. If a landlord does this, Florida law allows the tenant to recover general damages (the difference between market value of the leasehold and the rent payable under it), and, in addition, lost profits if such losses are ascertainable with a reasonable degree of certainty. Lost profits may only be recovered, however, for the remainder of the leasehold term.

Step 2: Notice to Vacate

This is the most important part of the eviction process. The type of notice that is required depends on the reason for eviction. If the tenant is being evicted for nonpayment of rent, a 3-day notice (excluding Saturday, Sunday, and legal holidays) to pay is required. If the tenant is being evicted for violation of lease terms, the landlord is required to give the tenant either a 7-day notice to cure or a 7-day unconditional quit notice. If the tenant is being evicted because the lease is ending, the landlord must provide the tenant with a 15-Day Notice to Quit. There is no type of eviction that does not require notice.

The delivery of the written notices must be made be by mailing or delivering a true copy to the tenant, or, if the tenant is absent from the premises, by leaving a copy at the residence. The notice requirements may not be waived in the lease.

Step 3: Filing and Serving the Eviction

The third step is best handled by an attorney. The landlord, his agent, or attorney, files a complaint with the proper county court. Several documents are necessary: a complaint for eviction, a summons, a non-military affidavit, and a double-stamped addressed envelope for each defendant. The filing fees are expensive. There’s a filing fee of $185 per complaint, plus $10 per summons. Service fees range from $50 to $100 per tenant. Each tenant must be served with the complaint, and the tenant will have five (5) days to file a response with the clerk’s office.

Step 4: Default Judgment or Trial

If the tenant fails to answer within five (5) days after being served, the landlord is entitled to a default judgment, and a writ of possession.

If the tenant answers and demands a trial, the matter proceeds to trial. Every court is different, but typically when you arrive at court, you will go to the clerk’s office (which may just be a window in the lobby outside the courtroom or other building). When the judge arrives, she or he will typically call all of the people waiting into the courtroom, then call eviction cases in the order of her or his choice. In some counties they are called in order of filing. In some counties, the parties with attorneys have their cases called first, then those who are pro se are called next.

When your eviction case is called, you will approach the bench and the judge will ask you to explain the case. Sometimes, tenants (defendants) don’t even bother to show up, but some do and it’s becoming increasingly popular for tenants to hire attorneys to represent them in eviction cases. The tenant may have no real defense, but the lawyers may work to prolong the eviction as long as possible giving their clients (your tenants) the longest period of time possible (free rent) in your property.

An experienced attorney can advise you on the most expedient course of action. After hearing arguments from both sides, the judge will issue a judgment. If the verdict is for the Plaintiff (property owner), the judgment will contain notice of when the tenant must vacate the property.

From here, the tenant can do one of three things:
1.         The tenant can vacate the property and return the keys. In which case on the date set out in the judgment, you go to the property and change the locks.
2.         The tenant can NOT vacate the property. The landlord will have pay the sheriff roughly $100, request that the writ of possession is posted by the sheriff, and 24-72 hours after posting the tenant will be forcibly removed the property. The bad news with writs of possession is that the sheriff will only help to forcibly remove the tenant. The landlord is personally responsible for removing all of the tenant’s personal items and placing them on the curb. The sheriff will not wait indefinitely. In most jurisdictions, the landlord will have roughly one (1) hour to remove everything that is left in the home. If you have a large unit, make sure to hire a moving company or bring plenty of help the day of the set out.
3.         The tenant can NOT vacate the property and file an appeal. See “Step 5: Appeal to Circuit Court” below.

Step 5: Appeal

A tenant has thirty (30) days to appeal a judgment and writ of possession. However, an appeal in an possession case will not stay possession unless the tenant, at the time she or he files the appeal, pays rent into the registry of the court and obtains a stay pending appeal. Thus, practically speaking, appeals need to be filed prior to enforcement of the writ of possession, because there is no way to “uneject” a tenant after the sheriff has thrown her out!

Appeals are incredibly complex, and should never be undertaken without experienced counsel to guide the way.

Select Provisions of Florida Law Pertaining to Dispossessory Proceedings

Florida Statutes Annotated
Title VI. Civil Practice and Procedure (Chapters 45-89)
Chapter 83. Landlord and Tenant
Part II. Residential Tenancies

83.47. Prohibited provisions in rental agreements

(1) A provision in a rental agreement is void and unenforceable to the extent that it:
(a) Purports to waive or preclude the rights, remedies, or requirements set forth in this part.
(b) Purports to limit or preclude any liability of the landlord to the tenant or of the tenant to the landlord, arising under law.
(2) If such a void and unenforceable provision is included in a rental agreement entered into, extended, or renewed after the effective date of this part and either party suffers actual damages as a result of the inclusion, the aggrieved party may recover those damages sustained after the effective date of this part.

83.49. Deposit money or advance rent; duty of landlord and tenant

(1) Whenever money is deposited or advanced by a tenant on a rental agreement as security for performance of the rental agreement or as advance rent for other than the next immediate rental period, the landlord or the landlord’s agent shall either:
(a) Hold the total amount of such money in a separate non-interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants. The landlord shall not commingle such moneys with any other funds of the landlord or hypothecate, pledge, or in any other way make use of such moneys until such moneys are actually due the landlord;
(b) Hold the total amount of such money in a separate interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants, in which case the tenant shall receive and collect interest in an amount of at least 75 percent of the annualized average interest rate payable on such account or interest at the rate of 5 percent per year, simple interest, whichever the landlord elects. The landlord shall not commingle such moneys with any other funds of the landlord or hypothecate, pledge, or in any other way make use of such moneys until such moneys are actually due the landlord; or
(c) Post a surety bond, executed by the landlord as principal and a surety company authorized and licensed to do business in the state as surety, with the clerk of the circuit court in the county in which the dwelling unit is located in the total amount of the security deposits and advance rent he or she holds on behalf of the tenants or $50,000, whichever is less. The bond shall be conditioned upon the faithful compliance of the landlord with the provisions of this section and shall run to the Governor for the benefit of any tenant injured by the landlord’s violation of the provisions of this section. In addition to posting the surety bond, the landlord shall pay to the tenant interest at the rate of 5 percent per year, simple interest. A landlord, or the landlord’s agent, engaged in the renting of dwelling units in five or more counties, who holds deposit moneys or advance rent and who is otherwise subject to the provisions of this section, may, in lieu of posting a surety bond in each county, elect to post a surety bond in the form and manner provided in this paragraph with the office of the Secretary of State. The bond shall be in the total amount of the security deposit or advance rent held on behalf of tenants or in the amount of $250,000, whichever is less. The bond shall be conditioned upon the faithful compliance of the landlord with the provisions of this section and shall run to the Governor for the benefit of any tenant injured by the landlord’s violation of this section. In addition to posting a surety bond, the landlord shall pay to the tenant interest on the security deposit or advance rent held on behalf of that tenant at the rate of 5 percent per year simple interest.

(2) The landlord shall, in the lease agreement or within 30 days after receipt of advance rent or a security deposit, give written notice to the tenant which includes disclosure of the advance rent or security deposit. Subsequent to providing such written notice, if the landlord changes the manner or location in which he or she is holding the advance rent or security deposit, he or she must notify the tenant within 30 days after the change as provided in paragraphs (a)-(d). The landlord is not required to give new or additional notice solely because the depository has merged with another financial institution, changed its name, or transferred ownership to a different financial institution. This subsection does not apply to any landlord who rents fewer than five individual dwelling units. Failure to give this notice is not a defense to the payment of rent when due. The written notice must:
(a) Be given in person or by mail to the tenant.
(b) State the name and address of the depository where the advance rent or security deposit is being held or state that the landlord has posted a surety bond as provided by law.
(c) State whether the tenant is entitled to interest on the deposit.
(d) Contain the following disclosure:
YOUR LEASE REQUIRES PAYMENT OF CERTAIN DEPOSITS. THE LANDLORD MAY TRANSFER ADVANCE RENTS TO THE LANDLORD’S ACCOUNT AS THEY ARE DUE AND WITHOUT NOTICE. WHEN YOU MOVE OUT, YOU MUST GIVE THE LANDLORD YOUR NEW ADDRESS SO THAT THE LANDLORD CAN SEND YOU NOTICES REGARDING YOUR DEPOSIT. THE LANDLORD MUST MAIL YOU NOTICE, WITHIN 30 DAYS AFTER YOU MOVE OUT, OF THE LANDLORD’S INTENT TO IMPOSE A CLAIM AGAINST THE DEPOSIT. IF YOU DO NOT REPLY TO THE LANDLORD STATING YOUR OBJECTION TO THE CLAIM WITHIN 15 DAYS AFTER RECEIPT OF THE LANDLORD’S NOTICE, THE LANDLORD WILL COLLECT THE CLAIM AND MUST MAIL YOU THE REMAINING DEPOSIT, IF ANY.
IF THE LANDLORD FAILS TO TIMELY MAIL YOU NOTICE, THE LANDLORD MUST RETURN THE DEPOSIT BUT MAY LATER FILE A LAWSUIT AGAINST YOU FOR DAMAGES. IF YOU FAIL TO TIMELY OBJECT TO A CLAIM, THE LANDLORD MAY COLLECT FROM THE DEPOSIT, BUT YOU MAY LATER FILE A LAWSUIT CLAIMING A REFUND.
YOU SHOULD ATTEMPT TO INFORMALLY RESOLVE ANY DISPUTE BEFORE FILING A LAWSUIT. GENERALLY, THE PARTY IN WHOSE FAVOR A JUDGMENT IS RENDERED WILL BE AWARDED COSTS AND ATTORNEY FEES PAYABLE BY THE LOSING PARTY.
THIS DISCLOSURE IS BASIC. PLEASE REFER TO PART II OF CHAPTER 83, FLORIDA STATUTES, TO DETERMINE YOUR LEGAL RIGHTS AND OBLIGATIONS.

(3) The landlord or the landlord’s agent may disburse advance rents from the deposit account to the landlord’s benefit when the advance rental period commences and without notice to the tenant. For all other deposits:
(a) Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form:
This is a notice of my intention to impose a claim for damages in the amount of

upon your security deposit, due to

. It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord’s address).
If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit and may not seek a setoff against the deposit but may file an action for damages after return of the deposit.
(b) Unless the tenant objects to the imposition of the landlord’s claim or the amount thereof within 15 days after receipt of the landlord’s notice of intention to impose a claim, the landlord may then deduct the amount of his or her claim and shall remit the balance of the deposit to the tenant within 30 days after the date of the notice of intention to impose a claim for damages. The failure of the tenant to make a timely objection does not waive any rights of the tenant to seek damages in a separate action.
(c) If either party institutes an action in a court of competent jurisdiction to adjudicate the party’s right to the security deposit, the prevailing party is entitled to receive his or her court costs plus a reasonable fee for his or her attorney. The court shall advance the cause on the calendar.
(d) Compliance with this section by an individual or business entity authorized to conduct business in this state, including Florida-licensed real estate brokers and sales associates, constitutes compliance with all other relevant Florida Statutes pertaining to security deposits held pursuant to a rental agreement or other landlord-tenant relationship. Enforcement personnel shall look solely to this section to determine compliance. This section prevails over any conflicting provisions in chapter 475 and in other sections of the Florida Statutes, and shall operate to permit licensed real estate brokers to disburse security deposits and deposit money without having to comply with the notice and settlement procedures contained in s. 475.25(1)(d).

(4) The provisions of this section do not apply to transient rentals by hotels or motels as defined in chapter 509; nor do they apply in those instances in which the amount of rent or deposit, or both, is regulated by law or by rules or regulations of a public body, including public housing authorities and federally administered or regulated housing programs including s. 202, s. 221(d)(3) and (4), s. 236, or s. 8 of the National Housing Act, as amended, other than for rent stabilization. With the exception of subsections (3), (5), and (6), this section is not applicable to housing authorities or public housing agencies created pursuant to chapter 421 or other statutes.

(5) Except when otherwise provided by the terms of a written lease, any tenant who vacates or abandons the premises prior to the expiration of the term specified in the written lease, or any tenant who vacates or abandons premises which are the subject of a tenancy from week to week, month to month, quarter to quarter, or year to year, shall give at least 7 days’ written notice by certified mail or personal delivery to the landlord prior to vacating or abandoning the premises which notice shall include the address where the tenant may be reached. Failure to give such notice shall relieve the landlord of the notice requirement of paragraph (3)(a) but shall not waive any right the tenant may have to the security deposit or any part of it.

(6) For the purposes of this part, a renewal of an existing rental agreement shall be considered a new rental agreement, and any security deposit carried forward shall be considered a new security deposit.

(7) Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, together with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records to the new owner or agent, and upon transmittal of a written receipt therefor, the transferor is free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant. There is a rebuttable presumption that any new owner or agent received the security deposit from the previous owner or agent; however, this presumption is limited to 1 month’s rent. This subsection does not excuse the landlord or agent for a violation of other provisions of this section while in possession of such deposits.

(8) Any person licensed under the provisions of s. 509.241, unless excluded by the provisions of this part, who fails to comply with the provisions of this part shall be subject to a fine or to the suspension or revocation of his or her license by the Division of Hotels and Restaurants of the Department of Business and Professional Regulation in the manner provided in s. 509.261.

(9) In those cases in which interest is required to be paid to the tenant, the landlord shall pay directly to the tenant, or credit against the current month’s rent, the interest due to the tenant at least once annually. However, no interest shall be due a tenant who wrongfully terminates his or her tenancy prior to the end of the rental term.

83.55. Right of action for damages

If either the landlord or the tenant fails to comply with the requirements of the rental agreement or this part, the aggrieved party may recover the damages caused by the noncompliance.

83.56. Termination of rental agreement

(1) If the landlord materially fails to comply with s. 83.51(1) or material provisions of the rental agreement within 7 days after delivery of written notice by the tenant specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement. If the failure to comply with s. 83.51(1) or material provisions of the rental agreement is due to causes beyond the control of the landlord and the landlord has made and continues to make every reasonable effort to correct the failure to comply, the rental agreement may be terminated or altered by the parties, as follows:
(a) If the landlord’s failure to comply renders the dwelling unit untenantable and the tenant vacates, the tenant shall not be liable for rent during the period the dwelling unit remains uninhabitable.
(b) If the landlord’s failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be reduced by an amount in proportion to the loss of rental value caused by the noncompliance.

(2) If the tenant materially fails to comply with s. 83.52 or material provisions of the rental agreement, other than a failure to pay rent, or reasonable rules or regulations, the landlord may:
(a) If such noncompliance is of a nature that the tenant should not be given an opportunity to cure it or if the noncompliance constitutes a subsequent or continuing noncompliance within 12 months of a written warning by the landlord of a similar violation, deliver a written notice to the tenant specifying the noncompliance and the landlord’s intent to terminate the rental agreement by reason thereof. Examples of noncompliance which are of a nature that the tenant should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the landlord’s or other tenants’ property by intentional act or a subsequent or continued unreasonable disturbance. In such event, the landlord may terminate the rental agreement, and the tenant shall have 7 days from the date that the notice is delivered to vacate the premises. The notice shall be in substantially the following form:
You are advised that your lease is terminated effective immediately. You shall have 7 days from the delivery of this letter to vacate the premises. This action is taken because (cite the noncompliance) .
(b) If such noncompliance is of a nature that the tenant should be given an opportunity to cure it, deliver a written notice to the tenant specifying the noncompliance, including a notice that, if the noncompliance is not corrected within 7 days from the date that the written notice is delivered, the landlord shall terminate the rental agreement by reason thereof. Examples of such noncompliance include, but are not limited to, activities in contravention of the lease or this part such as having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary. If such noncompliance recurs within 12 months after notice, an eviction action may commence without delivering a subsequent notice pursuant to paragraph (a) or this paragraph. The notice shall be in substantially the following form:
You are hereby notified that (cite the noncompliance) . Demand is hereby made that you remedy the noncompliance within 7 days of receipt of this notice or your lease shall be deemed terminated and you shall vacate the premises upon such termination. If this same conduct or conduct of a similar nature is repeated within 12 months, your tenancy is subject to termination without further warning and without your being given an opportunity to cure the noncompliance.

(3) If the tenant fails to pay rent when due and the default continues for 3 days, excluding Saturday, Sunday, and legal holidays, after delivery of written demand by the landlord for payment of the rent or possession of the premises, the landlord may terminate the rental agreement. Legal holidays for the purpose of this section shall be court-observed holidays only. The 3-day notice shall contain a statement in substantially the following form:
You are hereby notified that you are indebted to me in the sum of

dollars for the rent and use of the premises (address of leased premises, including county) , Florida, now occupied by you and that I demand payment of the rent or possession of the premises within 3 days (excluding Saturday, Sunday, and legal holidays) from the date of delivery of this notice, to wit: on or before the

day of

, (year) .
(landlord’s name, address and phone number)

(4) The delivery of the written notices required by subsections (1), (2), and (3) shall be by mailing or delivery of a true copy thereof or, if the tenant is absent from the premises, by leaving a copy thereof at the residence. The notice requirements of subsections (1), (2), and (3) may not be waived in the lease.

(5)(a) If the landlord accepts rent with actual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions, or if the tenant pays rent with actual knowledge of a noncompliance by the landlord or accepts performance by the landlord of any other provision of the rental agreement that is at variance with its provisions, the landlord or tenant waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance. However, a landlord does not waive the right to terminate the rental agreement or to bring a civil action for that noncompliance by accepting partial rent for the period. If partial rent is accepted after posting the notice for nonpayment, the landlord must:
1. Provide the tenant with a receipt stating the date and amount received and the agreed upon date and balance of rent due before filing an action for possession;
2. Place the amount of partial rent accepted from the tenant in the registry of the court upon filing the action for possession; or
3. Post a new 3-day notice reflecting the new amount due.
(b) Any tenant who wishes to defend against an action by the landlord for possession of the unit for noncompliance of the rental agreement or of relevant statutes must comply with s. 83.60(2). The court may not set a date for mediation or trial unless the provisions of s. 83.60(2) have been met, but must enter a default judgment for removal of the tenant with a writ of possession to issue immediately if the tenant fails to comply with s. 83.60(2).
(c) This subsection does not apply to that portion of rent subsidies received from a local, state, or national government or an agency of local, state, or national government; however, waiver will occur if an action has not been instituted within 45 days after the landlord obtains actual knowledge of the noncompliance.

(6) If the rental agreement is terminated, the landlord shall comply with s. 83.49(3).

83.59. Right of action for possession

(1) If the rental agreement is terminated and the tenant does not vacate the premises, the landlord may recover possession of the dwelling unit as provided in this section.

(2) A landlord, the landlord’s attorney, or the landlord’s agent, applying for the removal of a tenant, shall file in the county court of the county where the premises are situated a complaint describing the dwelling unit and stating the facts that authorize its recovery. A landlord’s agent is not permitted to take any action other than the initial filing of the complaint, unless the landlord’s agent is an attorney. The landlord is entitled to the summary procedure provided in s. 51.011, and the court shall advance the cause on the calendar.

(3) The landlord shall not recover possession of a dwelling unit except:
(a) In an action for possession under subsection (2) or other civil action in which the issue of right of possession is determined;
(b) When the tenant has surrendered possession of the dwelling unit to the landlord;
(c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence; or
(d) When the last remaining tenant of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the landlord has not been notified in writing of the existence of a probate estate or of the name and address of a personal representative. This paragraph does not apply to a dwelling unit used in connection with a federally administered or regulated housing program, including programs under s. 202, s. 221(d)(3) and (4), s. 236, or s. 8 of the National Housing Act, as amended.1

(4) The prevailing party is entitled to have judgment for costs and execution therefor.

83.64. Retaliatory conduct

(1) It is unlawful for a landlord to discriminatorily increase a tenant’s rent or decrease services to a tenant, or to bring or threaten to bring an action for possession or other civil action, primarily because the landlord is retaliating against the tenant. In order for the tenant to raise the defense of retaliatory conduct, the tenant must have acted in good faith. Examples of conduct for which the landlord may not retaliate include, but are not limited to, situations where:
(a) The tenant has complained to a governmental agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the premises;
(b) The tenant has organized, encouraged, or participated in a tenant organization;
(c) The tenant has complained to the landlord pursuant to s. 83.56(1);
(d) The tenant is a servicemember who has terminated a rental agreement pursuant to s. 83.682;
(e) The tenant has paid rent to a condominium, cooperative, or homeowners’ association after demand from the association in order to pay the landlord’s obligation to the association; or
(f) The tenant has exercised his or her rights under local, state, or federal fair housing laws.

(2) Evidence of retaliatory conduct may be raised by the tenant as a defense in any action brought against him or her for possession.

(3) In any event, this section does not apply if the landlord proves that the eviction is for good cause. Examples of good cause include, but are not limited to, good faith actions for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the terms of this chapter.

(4) “Discrimination” under this section means that a tenant is being treated differently as to the rent charged, the services rendered, or the action being taken by the landlord, which shall be a prerequisite to a finding of retaliatory conduct.

Disclaimer: The law is constantly changing and there may be times when the information on this web site will not be current. This information is provided for general informational purposes only and is not intended as legal advice. This information is not a comprehensive treatment of the subject and is not a substitute for advice from an attorney.

EVICTION PROCESS IN SOUTH CAROLINA – HOW TO EVICT A TENANT IN SOUTH CAROLINA

Step 1: Understand the South Carolina Laws on Ejectment Proceedings (Evictions).

Since 1882, South Carolina has prohibited the use of “self-help” remedies to remove a residential tenant. Sharp v. Kinsman, 18 S.C. 108, 114 (1882) (“the landlord has no right to take the law into his own hands and proceed to eject the tenant, but that his duty would be to call to his aid the process of the law.”). The only two ways to lawfully eject a tenant are (1) with the tenant’s consent; or (2) by court order. The only two ways to lawfully remove a tenant are (1) with the tenant’s consent; or (2) by court order. No matter what your lease says, if a tenant refuses to leave, your only option is to take the tenant to court. Failure to do so can result in criminal charges, as well as civil liability (including punitive damages for trespass) for any damage done to the tenant’s personal property.

The first two are pretty self-explanatory. As for the third, the specific provisions contained in the lease will control, but they can include tenants who have:

Committed lease violations – (not rent related);
Allowed unauthorized pets in the home;
Allowed unknown occupants in the home, in violation of the lease;
Significantly damaged the property, in violation of the lease;
Committed crimes in violation of the lease; and
Are former owners of the property that remain in possession after a foreclosure;

Can a tenant deduct repairs from the rent paid?
South Carolina laws requires a landlord to “make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition.” S.C. Code Ann. § 27–40–440(a)(1) and (2) (2007). That being said, the landlord’s obligation to repair is independent of the tenant’s obligation to pay rent, and tenants have no right to “hold the property covered by the lease free of all demands for payment of rent.” Port Utilities Comm’n of Charleston v. Marine Oil Co., 173 S.C. 346, 175 S.E. 818, 820 (1934).

How long does it take to evict a tenant?  How long is the eviction process?
As short as 15 days in some instances, but as long as 2-3 months in other cases.

Can I turn off the utilities if the tenant doesn’t pay the rent?
South Carolina prohibits retaliatory conduct, and turning off utilities can be considered retaliatory conduct in certain circumstances. It is never a good idea to do this.

Can I change the locks if the tenant does not pay the rent?
No. If a landlord does this, South Carolina law allows a tenant to recover an amount equal to three months’ rent or twice the actual damages, whichever is greater, and reasonable attorney’s fees. S.C. Code Ann. § 27-40-660

Step 2: Notice to Vacate

This is the most important part of the eviction process. The type of notice that is required depends on the reason for eviction. If the tenant is being evicted for nonpayment of rent, a 5-day notice to pay is required (unless the lease quotes statutory language authorizing the landlord to automatically evict after five days). If the tenant is being evicted for violation of lease terms, the landlord is required to give the tenant a 14-Day Notice to Comply. If the tenant is being evicted because the lease is ending, the landlord must provide the tenant with a 30-Day Notice to Quit. The only type of eviction that does not require notice is when the tenant is being evicted for illegal activity.

Step 3: Filing and Serving the Eviction

The third step is straightforward. The landlord, his agent, or attorney, files an Application for Ejectment with the local magistrate. There are multiple magistrate courts in each county, and in some counties, identifying the appropriate magistrate can sometimes be difficult. The magistrate will then issue a Rule (or Order) to Show Cause, and attempt to have it served on the tenant by either the sheriff, deputy sheriff, magistrate’s constable, or anyone over the age of 18 who is not part of the case. If service is not effected within 120 days, the ejectment action may be dismissed.

 

Step 4: Default Judgment or Trial

If the tenant fails to answer within ten (10) days after being served, the landlord is entitled to a default judgment, and a writ of ejectment.

If the tenant answers and demands a trial, the matter proceeds to trial. Tenants are allowed to request a jury trial, but it is rare. Every magistrate court is different, but typically when you arrive at court, you will go to the clerk’s office (which may just be a window in the lobby outside the courtroom or other building). When the magistrate arrives, she or he will typically call all of the people waiting into the courtroom, then call eviction cases in whatever order the magistrate chooses. In some counties they are called in order of filing. In some counties, the parties with attorneys have their cases called first, then those who are pro se are called next.

When your eviction case is called, you will approach the bench and the judge will ask you to explain the case. Sometimes, tenants (defendants) don’t even bother to show up, but some do and it’s becoming increasingly popular for tenants to hire attorneys to represent them in eviction cases. The tenant may have no real defense, but the lawyers may work to prolong the eviction as long as possible giving their clients (your tenants) the longest period of time possible (free rent) in your property.

An experienced attorney can advise you on the most expedient course of action. After hearing arguments from both sides, the judge will issue a judgment. If the verdict is for the Plaintiff (property owner), the judgment will contain notice that a writ of ejectment will issue five (5) days after the ruling, requiring the tenant to vacate the property.

From here, the tenant can do one of three things:
1.         The tenant can vacate the property and return the keys. In which case on the sixth day after the Judgment, you go to the property and change the locks.
2.         The tenant can NOT vacate the property. The landlord will have to request that the writ of ejectment is posted, and 24 hours after posting the tenant will be forcibly removed the property. The bad news with writs of ejectment is that the sheriff will only help to forcibly remove the tenant. The landlord is personally responsible for removing all of the tenant’s personal items and placing them on the curb. The sheriff will not wait indefinitely. In most jurisdictions, the landlord will have roughly one (1) hour to remove everything that is left in the home. If you have a large unit, make sure to hire a moving company or bring plenty of help the day of the set out.
3.         The tenant can NOT vacate the property and file an appeal. See “Step 5: Appeal to Circuit Court” below.

Step 5: Appeal to Circuit Court

A tenant has thirty (30) days to appeal a judgment and writ of ejectment. However, an appeal in an ejectment case will not stay ejectment unless the tenant shall, at the time she or he files the appeal, gives an appeal bond in an amount sufficient to cover all costs and damages that could accrue to the landlord during the time of appeal. Thus, practically speaking, appeals need to be filed prior to enforcement of the writ of ejectment within 5-6 days, because there is no way to “uneject” a tenant after the sheriff has thrown her out! Once an appeal is filed, the case is transferred to the Circuit Court. See S.C. Magistrate Rule 18; S.C. Code Ann. §§ 27-37-120 and 27-37-130.

Circuit Courts are courts of record, and appeals from magistrate court to the circuit court are governed by the South Carolina Rules of Civil Procedure, the South Carolina Rules of Evidence, and certain statutes outlining specific ways that the circuit court judge will evaluate the case. An appeal to circuit court rarely results in a new trial. Instead, the circuit evaluates the appeal based “upon all the papers in the case, including the testimony on the trial, which shall be taken down in writing and signed by the witnesses, and the grounds of exception made, without the examination of witnesses in court. The appeal shall be heard on the original papers and no copy thereof need be furnished for the use of the court.” S.C. Code Ann. § 18-7-130. If the appeal is based on a question of fact, the circuit court judge will determine the facts based on affidavits, but may examine witnesses if the judge sees fit. S.C. Code Ann. § 18-7-180.

Select Provisions of South Carolina Law Pertaining to Dispossessory Proceedings

South Carolina Code of Laws
Title 27 – Property and Conveyances
CHAPTER 37
Ejectment of Tenants

SECTION 27-37-10. Grounds for ejectment of tenant.

(A) The tenant may be ejected upon application of the landlord or his agent when (1) the tenant fails or refuses to pay the rent when due or when demanded, (2) the term of tenancy or occupancy has ended, or (3) the terms or conditions of the lease have been violated.

(B) For residential rental agreements, nonpayment of rent within five days of the date due constitutes legal notice to the tenant that the landlord has the right to begin ejectment proceedings under this chapter if a written rental agreement specifies in bold conspicuous type that nonpayment of rent constitutes such notice. This requirement is satisfied if the written rental agreement contains the notice specified in Section 27-40-710(B).

SECTION 27-37-20. Ejectment proceedings.

Any tenant may be ejected in the following manner, to wit: Upon application by the landlord or his agent or attorney any magistrate having jurisdiction shall issue a written rule requiring the tenant forthwith to vacate the premises occupied by him or to show cause why he should not be ejected before the magistrate within ten days after service of a copy of such rule upon the tenant.

SECTION 27-37-30. Service of rule; posting and mailing requirements.

(A) The copy of the rule provided for in Section 27-37-20 may be served in the same manner as is provided by law for the service of the summons in actions pending in the court of common pleas or magistrates courts of this State. The methods of service described in subsections (B) and (C) may be used as alternatives to the method of service described in this subsection.

(B) When no person can be found in possession of the premises, and the premises have remained abandoned, as defined in Section 27-40-730 for residential rental agreements and in Section 27-35-150 for nonresidential rental agreements, for a period of fifteen days or more immediately before the date of service, the copy of the rule may be served by leaving it affixed to the most conspicuous part of the premises.

(C) When service as provided in subsection (A) has been attempted unsuccessfully two times in the manner described in item (1), a copy of the rule may be served by affixing both it and documentation of the two service attempts to the most conspicuous part of the premises and mailing a copy of the rule in the manner described in item (2):

(1) Each of the two attempts to serve the defendant must be separated by a minimum of forty-eight hours and must occur at times of day separated by a minimum of eight hours. The person attempting to serve the rule must document the date and time of the attempts by affidavit or by certificate in the case of a law enforcement officer. On the first unsuccessful attempt to serve the rule, a copy of the rule must be affixed to the most conspicuous part of the premises. On the second unsuccessful attempt to serve the rule, the documentation of the two attempts to serve the rule must be attached to the copy of the rule when it is affixed to the most conspicuous part of the premises.

(2) For mailing by ordinary mail to be considered to complete service under this item, it must be accomplished by placing a copy of the rule and documentation of the prior attempts at service in an envelope in the presence of the clerk of the magistrates court. The clerk is responsible for verifying that the envelope is addressed to the defendant at the address shown in the rule as the rental premises of the defendant or another address for receipt of mail furnished in writing by the tenant to the landlord, that the envelope contains the necessary documents, and that the clerk has placed the sealed and stamped envelope in the United States mail. The clerk’s verification must be made a part of the record in the case, and service by ordinary mail is not considered complete without the clerk’s verification. A fee as provided for in Section 8-21-1010(14) must be collected by the magistrate or his clerk for the verification and mailing in this item.

(3) Mailing of the rule constitutes service when the requirements of items (1) and (2) have been met and ten days have elapsed from the time of mailing. If these requirements have been met, the specified time period for the tenant to show cause why he should not be ejected as provided in Section 27-37-20 begins to run on the eleventh day after mailing. However, if the tenant contacts the magistrates court prior to the eleventh day, the specified time period for the tenant to show cause as provided in Section 27-37-20 must begin to run at the time of contact.

SECTION 27-37-120. Appeal.

Either party may appeal in an ejectment case and such appeal shall be heard and determined as other appeals in civil cases from the magistrate’s court.

SECTION 27-37-130. Bond required to stay ejectment on appeal.

An appeal in an ejectment case will not stay ejectment unless at the time of appealing the tenant shall give an appeal bond as in other civil cases for an amount to be fixed by the magistrate and conditioned for the payment of all costs and damages which the landlord may sustain thereby. In the event the tenant shall fail to file the bond herein required within five days after service of the notice of appeal such appeal shall be dismissed by the trial magistrate.

SECTION 27-37-160. Execution of writ of ejectment.

In executing a writ of ejectment, the constable or deputy sheriff shall proceed to the premises, present to the occupants a copy of the writ and give the occupants twenty-four hours to vacate voluntarily. If the occupants refuse to vacate within twenty-four hours or the premises appear unoccupied, the constable or deputy sheriff shall announce his identity and purpose. If necessary, the deputy sheriff, but not a constable, may then enter the premises by force, using the least destructive means possible, in order to effectuate the ejectment. If the premises appear to be occupied and the occupant does not respond, the constable or deputy sheriff shall leave a copy of the writ taped or stapled at each corner and attached at the top of either the front or back door or in the most conspicuous place. Twenty-four hours following the posting of the writ, if the occupants have not vacated the premises voluntarily, the deputy sheriff, but not a constable, may then enter the premises by force, using the least destructive means possible, in order to effectuate the ejectment. Discretion may be exercised by the constable or deputy sheriff in granting a delay in the dispossession of ill or elderly tenants.

South Carolina Code of Laws
Title 18 – Appeals
CHAPTER 7
Appeals to Circuit and County Courts in Other Cases
ARTICLE 1
General Provisions
SECTION 18-7-110. Offer to allow judgment on appeal.

In any appeal either party may, at any time before the trial, serve upon the opposite party an offer, in writing, to allow judgment to be taken against him for the sum or property or to the effect in such offer specified, and with or without costs as the offer shall specify. If the party receiving such offer accept it and give notice thereof in writing within ten days, he may file the return and offer, with an affidavit of service of notice of acceptance thereof, and judgment shall be entered thereon according to the offer. If the notice of acceptance be not given, the offer is to be deemed withdrawn and cannot be given in evidence.

SECTION 18-7-180. Judgment on appeal; appeals on errors in fact.

If the appeal is founded on an error in fact in the proceedings, not affecting the merits of the action and not within the knowledge of the magistrate, the court may determine the alleged error in fact on affidavits and may, in its discretion, inquire into and determine the alleged error upon examination of the witnesses. Every issue of fact so joined or brought upon an appeal shall be tried in the manner provided in Section 18-7-130.

SECTION 18-7-190. Judgment on appeal; appeals on issue of law.

If the issue joined before the magistrate was an issue of law, the court shall render judgment thereon according to the law of the case; and if such judgment be against the pleadings of either party, an amendment of such pleading may be allowed on the same terms, and in like case, as pleadings in actions in the circuit court, and the court may thereupon require the opposite party to answer such amended pleading or join issue thereon, as the case may require, summarily. If upon an appeal in an issue of law the court should adjudge the pleading complained of to be valid, it shall, in like manner, require the opposite party summarily to answer such pleading or join issue thereon, as the case may require.

Disclaimer: The law is constantly changing and there may be times when the information on this web site will not be current. This information is provided for general informational purposes only and is not intended as legal advice. This information is not a comprehensive treatment of the subject and is not a substitute for advice from an attorney.