How Do I Terminate a Lease for Bed Bug Infestation in South Carolina?
Full Question:
Answer:
A failure on the landlord's part to correct a problem affecting the habitability of the premises may be cause for termination of the lease. In general, a warranty of habitability requires landlords to maintain safe and sanitary housing fit for human habitation. The warranty of provides protection against those conditions that materially affect the health and safety of the tenants or those deficiencies that, in the eyes of a reasonable person, deprive a tenant of those essential functions which a residence is expected to provide. "Habitability," for purposes of a landlord's warranty of habitability is not the same as no risk of harm. An apartment can provide adequate shelter and amenities, as promised, and still be a place which presents some risk.
This warranty is implied into all leases and generally requires the landlord to deliver livable quarters at the tenancy's inception and to maintain the premises in a habitable condition throughout the term, and conditions the tenant's covenant to pay rent on the habitable condition of the premises. A landlord is required to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition. To constitute a breach of the warranty, the defect complained of must be shown to be of a nature and kind which will prevent the use of the dwelling for its intended purpose to provide premises fit for habitation by its dwellers.
The warranty of habitability is not intended to make the landlord a guarantor of every amenity customarily rendered in the landlord-tenant relationship, but only provides protection against those conditions that materially affect the health and safety of the tenants or those deficiencies that, in the eyes of a reasonable person, deprive a tenant of those essential functions which a residence is expected to provide. "Habitability," for purposes of a landlord's warranty of habitability is not the same as no risk of harm. An apartment can provide adequate shelter and amenities, as promised, and still be a place which presents some risk.
Factors to be considered in determining whether a condition or defect constitutes an actionable breach of the warranty include:
(1) whether the condition violates a housing law, regulation, or ordinance;
(2) the nature and seriousness of the defect;
(3) the effect of the defect on safety and sanitation;
(4) the length of time the condition has persisted; and
(5) the age of the structure.
A condition which may endanger or materially impair the health or safety and well-being of an occupant is sufficient to violate the warranty of habitability Factors aiding a court's determination of the materiality of a landlord's alleged breach of a residential lease include: (1) the seriousness of the claimed defects and their effect on the dwelling's habitability (2) the length of time the defects persist, (3) whether the landlord received written or oral notice of the defects, (4) whether the residence could be made habitable within a reasonable time, and (5) whether the defects resulted from abnormal conduct or use by the tenant.
Additionally, to assert a breach of the implied warranty of habitability except where otherwise provided by statute, the tenant must prove that he or she gave notice to the landlord of the defect or condition, that the landlord had a reasonable opportunity to make the necessary repairs, and that he or she failed to do so. SC statutes require giving the landlord 14 days' notice to correct the problem (please see below). I suggest calling the building department, so that any code violations may be on record as evidence.
Please see the following SC statutes:
§ 27-40-440. Landlord to maintain premises.
(a) A landlord shall:
(1) comply with the requirements of applicable building and housing
codes materially affecting health and safety;
(2) make all repairs and do whatever is reasonably necessary to put and
keep the premises in a fit and habitable condition;
(3) keep all common areas of the premises in a reasonably safe
condition, and, for premises containing more than four dwelling units,
keep in a reasonably clean condition;
(4) make available running water and reasonable amounts of hot water at
all times and reasonable heat except where the building that includes
the dwelling unit is not required by law to be equipped for that
purpose, or the dwelling unit is so constructed that heat or hot water
is generated by an installation within the exclusive control of the
tenant and supplied by a direct public utility connection;
(5) maintain in reasonably good and safe working order and condition
all electrical, gas, plumbing, sanitary, heating, ventilating, air
conditioning, and other facilities and appliances, including elevators,
supplied or required to be supplied by him. Appliances present in the
dwelling unit are presumed to be supplied by the landlord unless
specifically excluded by the rental agreement. No appliances or facilities
necessary to the provision of essential services may be excluded.
(b) If the duty imposed by paragraph (1) of subsection (a) is greater
than any duty imposed by any other paragraph of that subsection, the
landlord's duty must be determined by reference to paragraph (1) of
subsection (a).
(c) The landlord and tenant of a single family residence may agree in
writing that the tenant perform the landlord's duties specified in
paragraph (5) of subsection (a) and also specified repairs, maintenance
tasks, alterations, and remodeling, but only if the transaction is
entered into in good faith and not for the purpose of evading the
obligations of the landlord.
(d) The landlord and tenant of any dwelling unit other than a single
family residence may agree that the tenant is to perform specified
repairs, maintenance tasks, alterations, or remodeling only if:
(1) the agreement of the parties is entered into in good faith and not
for the purpose of evading the obligations of the landlord;
(2) the work is not necessary to cure noncompliance with subsection
(a)(1) of this section;
(3) the agreement does not diminish or affect the obligations of the
landlord to other tenants in the premises.
§ 27-40-610. Noncompliance by landlord in general.
(a) Except as provided in this chapter, if there is a material
noncompliance by the landlord with the rental agreement or a
noncompliance with § 27-40-440 materially affecting health and safety or
the physical condition of the property, the tenant may deliver a written
notice to the landlord specifying the acts and omissions constituting the
breach and that the rental agreement will terminate upon a date not less
than fourteen days after receipt of the notice if the breach is not
remedied within fourteen days. The rental agreement shall terminate as
provided in the notice except that:
(1) The rental agreement shall not terminate by reason of the breach:
(i) if the breach is remedial by repairs or otherwise and the landlord
adequately remedies the breach before the date specified in the notice;
or
(ii) if such remedy for a breach not affecting health and safety cannot
be remedied within fourteen days, but is commenced within the
fourteen-day period and is pursued in good faith to completion within a
reasonable time.
(2) The tenant may not terminate for a condition caused by the
deliberate or negligent act or omission of the tenant, a member of his
family, or other person on the premises with the tenant's permission or
who is allowed access to the premises by the tenant.
(b) Except as provided in this chapter, the tenant may recover actual
damages and obtain injunctive relief in a magistrate's or circuit
court, without posting bond, for any noncompliance by the landlord with
the rental agreement or § 27-40-440. If the landlord's noncompliance is
wilful, the tenant may recover reasonable attorney's fees.
(c) If the rental agreement is terminated, the landlord shall return
security recoverable by the tenant under § 27-40-410. If the landlord's
noncompliance is wilful, the tenant may recover reasonable attorney's
fees.
§ 27-40-640. Landlord's noncompliance as defense to action for possession
or rent.
(a) In an action for possession based upon nonpayment of the rent or in
an action for rent concerning a period when the tenant is in possession,
the tenant may rely on the rental agreement or the provisions of this
chapter to assert defenses and to counterclaim for any amount recoverable
thereunder. If the defense or counterclaim by the tenant is without merit
and is not raised in good faith, the landlord may recover, in addition to
actual damages, reasonable attorney's fees.
(b) Notwithstanding the provisions of subsection (a), a tenant is
considered to have waived violation of a landlord's duty to maintain
the premises as set forth by the rental agreement or violation of the
landlord's duties under § 27-40-440 as a defense in an action for
possession based upon nonpayment of rent or in an action for rent
concerning a period where:
(1) the landlord has no notice of the violation of the duties fourteen
days before rent is due for violations of § 27-40-440 involving services
other than essential services; or
(2) the landlord has no notice before rent is due which provides a
reasonable opportunity to make emergency repairs necessary for the
provision of essential services.
(c) In an action for rent concerning a period when the tenant is not in
possession, he may assert defenses and counterclaims as provided in
subsection (a) but is not required to pay any rent as required by
§ 27-40-790.
