South Carolina Commercial Landlords Should Know These Three Things About Distress and Distraint
If you are a commercial landlord in South Carolina and have concerns about a tenant moving out of the property without providing you with any compensation for unpaid rent or for the remaining amount of rent due according to the terms of the lease, you are likely wondering what remedies may be available to you. In some situations, the commercial tenant may leave its property in the commercial space—such as equipment, tools, or even retail merchandise. At the same time, the commercial tenant may leave garbage and other unwanted property in the space. What is a landlord supposed to do in these circumstances, and does the landlord have any rights to the property that may have some market value?
In such scenarios, it is essential for South Carolina landlords to know about distress and distraint under South Carolina law. This is a potential remedy for commercial landlords under South Carolina law whether the tenant has been evicted under South Carolina law or has simply abandoned the property without regard for the lease terms. The following are three important things that all commercial landlords should know.
-
Distress and Distraint Refers to the Lawful Seizure and Sale of a Tenant’s Property
Under South Carolina law, distress and distraint refers to the process of seizing a commercial tenant’s property and selling it in order to cure defaults such as unpaid rent. To be clear, if a tenant does not pay rent and owes back rent to the landlord, the landlord may be able to move forward with the distress and distraint process in order to receive the amount of money it is owed in unpaid rent.
To pay the landlord, the tenant’s property ultimately will be seized and later sold, and the landlord will be entitled to receive an amount of the proceeds from that sale equal to the amount owed in unpaid rent.
-
Landlord Must Move Forward with Distress and Distraint By Filing with the Magistrate’s Court
In order to move forward with distress and distraint, the landlord must file with the Magistrate’s court. The Magistrate’s court has jurisdiction over certain landlord-tenant issues, including distress and distraint. The landlord will need to file an affidavit that outlines the amount of unpaid rent owed. If the tenant is no longer in the property, the landlord also must file an affidavit clarifying that the tenant has abandoned the space. The Magistrate’s court will schedule a hearing, which may result in a warrant for the amount of unpaid rent.
-
If Tenant Does Not Stop the Sale By Posting a Bond, Property Will Be Sold and Landlord Can Receive Unpaid Rent from the Proceeds
Once a warrant has been issued, a tenant will still have an opportunity to prevent the sale of its property by posting a bond. If the tenant posts a bond, the case will move onto a trial. If the tenant does not post a bond, then its property can be seized and sold. The landlord will be eligible to receive the amount of unpaid rent from the proceeds of the sale. However, it is important to know that the landlord cannot seek future unpaid rent if the tenant has abandoned the property.
While distress and distraint originally arose as a remedy through South Carolina case law, it is now a remedy that is now included in South Carolina statutory law.
Contact a South Carolina Creditors Rights Attorney
If you need assistance seeking unpaid rent from a commercial tenant, a South Carolina creditors’ rights lawyer can assist you. Contact Crawford & von Keller, LLC for more information.
Member AttorneyAttorney Profiles