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To appeal an eviction in SC, tenants are required to pay thousands of dollars first

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A housing complex owned by the Charleston Housing Authority and owned by the city is pictured from above on Wednesday, July 22, 2020. Lauren Petracca/Staff

South Carolina renters who face removal from their homes are routinely denied the chance to have their case heard by a higher court for a simple reason: To fight an eviction, they have to come armed with cash.

When tenants appeal evictions handed down by the Palmetto State’s magistrates, those same judges regularly demand that they come up with thousands of dollars in a matter of days. If they don’t, their cases can be thrown out.

That has happened to more than 120 tenants since the start of 2019, according to a Post and Courier analysis of court records across the state. It’s a process that blocks renters around the state from having their evictions reconsidered, a barrier to their efforts to seek justice.

In order to keep an appeal alive and hold off eviction, state law only specifies that tenants have to keep up with their regular monthly rent. But because the law is tangled and ambiguous, magistrates often require them to pay an additional bond before their case goes forward. The gulf between the law’s wording and its application highlights how imprecision in legislation can undermine its goals and detrimentally affect the people it's meant to protect.

And magistrates routinely use their discretion to demand that tenants come up with all the money their landlords say they owe — even when they dispute how much that is. Some magistrates go further, ordering tenants to put up all their back rent and pay extra rent upfront. That happened last year to a woman in Greenville who said her landlord reneged on a payment plan they set up and had her evicted instead. When she tried to have the case reconsidered, she was ordered to pay the equivalent of 11 months’ rent.

South Carolina’s practice is out of step with much of the country, said Eric Dunn, director of litigation for the National Housing Law Project. He calls the state’s procedure “really antithetical to the idea of equal justice” because it puts up roadblocks to tenants' voices being heard. Many other states have more flexible policies that take their financial predicaments into account.

Tenants here have little choice to comply or give up the fight. Under state law, if they don’t pay within five days, their case is over and they can be removed from their homes.

That happened to a woman in Charleston, who said her apartment’s manager admitted she’d made a mistake. It happened to a woman in Myrtle Beach, who said she was wrongly accused of keeping a wild bird as a pet. And it happened to a woman in Effingham, who was evicted in the midst of a fight over a pet deposit she didn’t think she should have to pay.

The Effingham woman wrote to the circuit court that her eviction hearing was held before the scheduled time. She wrote that she was appealing the ruling because “I just want to be heard!!!”

She wasn’t. A judge gave her just a few days to come up with $1,050. A week later, her case was thrown out, clearing the way for her to be evicted.

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A woman in Charleston tried to appeal her eviction from this apartment on Nassau Street. Her case was thrown out before it could be heard because she didn't post bond ordered by a judge. Lauren Petracca/Staff

A barrier

Magistrates in South Carolina don’t need to have formal legal training; fewer than half are licensed to practice law. But in eviction cases, they are charged with interpreting the law as they render decisions to remove people from their homes.

If tenants disagree with a magistrate's ruling, they can go up the ladder to one of the state's circuit courts, where the judges are all attorneys. But first, they must post bond. The magistrate decides the bond amount based on their interpretation of a law that is ambiguous at best.

The cost of a pursuing of an appeal can vary immensely, often hinging on which magistrate ends up hearing the case.

It can be as little as $0 up-front, as long as you pay your next month’s rent on time, the minimum specified in the law. Or it can be as high as everything your landlord says you owe plus your next three months’ rent up-front, a formula used by a handful of judges.

Being hit with a bond requirement that high “would effectively destroy everybody’s appeal” by setting a financial bar few tenants could meet, said Matthew Billingsley, an attorney who represents tenants for South Carolina Legal Services.

But requiring back rent alone is often enough to end an appeal before it reaches a hearing, The Post and Courier’s analysis found. In cases dismissed for failure to post bond, tenants were ordered to pay on average more than $3,000 and given less than a week to come up with the money. Many told the court they’d fallen behind on rent because of job losses or medical bills, giving them little hope of posting bond.

These instances include dozens of cases brought by tenants who disputed the amount they supposedly owed, like the woman in suburban Columbia who said her landlord didn’t record nearly $5,000 worth of payments, or the man in the Charlotte suburb of Fort Mill, who said he wasn’t credited for home repairs he paid for. Had he lived 5 miles away in North Carolina, the judge could only require him to pay the amount they both agreed on.

In South Carolina, the practice of requiring back rent is widespread: The newspaper identified cases thrown out for nonpayment in at least 12 counties, covering nearly all of the state’s largest cities, including Charleston, Columbia and Greenville.

To be sure, many eviction appeals are meant as a stalling tactic, a way to buy a little extra time to move out. Many are handwritten pleas for leniency and understanding. But if South Carolina’s system stops many spurious cases, it also imperils legitimate disputes.

Consider the case of three combat veterans who rented an apartment in downtown Charleston and thought they’d gotten a deal. The rent payments in their lease were lower than the price listed online, but they didn’t think much of it, according to their attorney, Nicole Paluzzi of Charleston Pro Bono Legal Services. The ad said veterans could qualify for subsidized rent.

A few months after they moved in, the landlord said the rent was supposed to be higher and the lease had contained a typo. The contract set rent at $1,200 a month, but the company meant to charge $2,100. The veterans were accused of underpaying on rent, which became the basis for the eviction case filed against them. The judge sided with the landlord, then required the men to pay $3,600 — the amount of their landlord’s mistake — to have an appeal heard.

It revealed an irony about the way South Carolina handles eviction appeals: The men had qualified for free legal representation, and because of their low income, the higher court agreed to waive the $150 fee for filing an appeal. But they were still required to come up with thousands of dollars before it would be heard.

In court papers, Paluzzi called it an “unfair burden” and a “barrier to their access to justice.”

Eventually, the courts would agree that it had been an excessive demand. After all, Circuit Judge D. Craig Brown concluded, the law doesn’t actually say tenants have to catch up on rent to appeal an eviction.

And while the judge eventually sided with the landlord, the men at least got their day in court.

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Charleston Pro Bono Legal Services represented three veterans who were accused of underpaying on rent due to a typo in their lease. A judge ordered them to pay $3,600 in bond to have an appeal heard. Grace Beahm Alford/Staff

Shifting requirements

This is what South Carolina law says about what it takes to appeal a case: If you agree to pay your rent when it’s due, that’s enough to delay an eviction.

When it comes to appeals, the state law that regulates residential leases, the Landlord and Tenant Act, says nothing about catching up on past-due rent.

In fact, magistrates regularly dismiss appeals based on laws that don’t apply to residential rentals, the newspaper’s review of court records found. In dozens of instances, they cited portions of law intended to regulate commercial lease agreements and deal with trespassers to justify throwing out tenants’ cases.

The Landlord and Tenant Act simply asks renters to sign an agreement in which they promise to pay their rent each month while their appeal is pending. If they miss a month, it warns, they can be kicked out of their homes.

The law even includes a sample form agreement for tenants to sign; nowhere does it leave room for back rent to be required.

The computer system that judges use to manage cases even includes a template they can fill out, according to the South Carolina Judicial Department, which runs the state's court system. It doesn't mention back rent, either.

Over time, however, many judges have modified the state’s form or made their own, and they have added extra requirements. They cite other sections of state law that they say give them the discretion to require bond payments. Housing attorneys contend that they are doing so improperly.

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When a tenant appeals an eviction, their case is heard by a judge on the circuit court. Dozens of cases are thrown out before they reach a hearing. Grace Beahm Alford/Staff

Incomplete access

Bond requirements like South Carolina’s have a simple goal: They’re designed to prevent tenants from using the court system to stay in their home rent-free.

That’s why the law specifies they must keep paying their rent month-to-month while the courts hear their appeal, or else be put out. Housing attorneys who represent renters contend that’s enough to protect property owners, ensuring they don’t lose income while the case is considered.

The effect of South Carolina’s system is that “if you have plenty of money and you can afford a bond, then you have more complete access to the judicial system and effectively have better rights available to you than people who are not as wealthy,” said Dunn of the National Housing Law Center.

To impose higher financial requirements on tenants already struggling to pay rent is a “disservice,” said state Rep. Marvin Pendarvis, a North Charleston Democrat who has called for changes to the Landlord and Tenant Act.

“You only compound the problem by making them put up so much money to be able to appeal an eviction that may be wrong from the get-go,” Pendarvis said.

Other states have found ways to give tenants a chance to be heard while ensuring landlords aren’t left holding the bag.

Alabama and Kentucky, for instance, specify that an appeal bond can only cover rent that came due after the eviction case was filed — not all the back rent that came before. In New Mexico, a tenant can stay in their apartment as long as they keep up with rent. Several more allow tenants to move out temporarily while their eviction is reviewed if they’re unable to pay.

And even in states that call for tenants to put up all the past rent they owe, lawmakers have adopted more forgiving rules. In Texas, renters can avoid paying bond by swearing under oath they can’t afford it. And in North Carolina, low-income tenants don’t have to post bond. When bond is required, judges can only include back rent if the amount is not disputed.

The North Carolina approach was an attempt to be more equitable and “pay attention to the problems that very low-income tenants are going to have,” said Bill Rowe, general counsel at the North Carolina Justice Center, a social justice advocacy group.

While those states have laid out specific processes, housing attorneys say that in South Carolina the law is murky and open to interpretation.

The language governing appeals in South Carolina hasn’t changed since 1986, when the state passed the Landlord and Tenant Act. At the time, the appeals process garnered no mention in the press, which focused on its other provisions, like requiring apartments to have heat and running water. The bill’s lead sponsor, former state Sen. McKinley Washington Jr., couldn’t recall details of the appeals process provisions when contacted by The Post and Courier earlier this month.

The law was South Carolina’s first try at making specific rules for home rentals and guaranteeing rights for tenants. In the time since, it has given rise to a system that produces different outcomes for tenants in different counties and before different judges.

“There really isn’t any uniformity among magistrates in South Carolina,” Pendarvis said.

Housing lawyers say the disparities between judges would ordinarily call for a higher court to settle how things should be done.

But first, someone would need to file an appeal — and pay up.

Reach Thad Moore at 843-937-5703. Follow him on Twitter @thadmoore.

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