USA – SOUTH CAROLINA Law and Practice Contributed by: Matt Norton and Christian Kolic, K&L Gates
landlord may terminate the lease. A landlord may also recover past-due rent and damages arising from the tenant’s failure to pay future rent. Bankruptcy A tenant in bankruptcy, however, will generally have the right to reject any lease determined to be burdensome to the tenant, and as a result of such rejection, the lease will terminate. Further, a ten - ant’s bankruptcy will result in an automatic stay prohibiting acts to enforce the lease or evict the tenant without prior bankruptcy court approval. 6.17 Right to Occupy After Termination or Expiry of a Lease A tenant has no right to possession after termi - nation of the lease and may be evicted by appro - priate court procedures. If the lease so provides, a tenant holding over beyond the expiration of the term may be liable for rent during the holdo - ver period at some multiple of the original rental amount. 6.18 Right to Assign a Leasehold Interest Assignment and sublease provisions are gener - ally included in leases, but where they are omit - ted, the majority rule is that the lease can be free - ly assigned or sublet; however, South Carolina takes a minority position for subletting, requiring consent from the landlord for a tenant to sub - lease where the lease is silent (S.C. Code Title 27, Chapter 35). It is common for leases to restrict assignment and subleasing but carve out limited exceptions in the event of an assignment or sub - lease to a related entity (eg, in connection with a reorganisation of the tenant entity) or in the event of an assignment to a successor entity (eg, the tenant entity is acquired by a third party). Where assignment or subletting is permitted in the lease, it would be typical for the landlord to require evi - dence of adequate net worth from the proposed
assignee or sublessee, and the landlord may not agree to release the assignor from backstopping the assignee if the assignee fails to satisfy their
lease obligations after assignment. 6.19 Right to Terminate a Lease
A landlord has a statutory right to terminate the lease upon non-payment of rent. Most commer - cial leases also contain a detailed list of defaults that will allow the landlord to terminate the lease and evict the tenant. These defaults frequently include the non-payment of rent, the failure to maintain the premises, the unauthorised use of the premises, the unauthorised assignment of the lease, the unauthorised subleasing of the premises, a violation of environmental laws with respect to the premises, abandonment of the premises, and the insolvency of the tenant. Investors should consult with South Carolina counsel to verify that the list of defaults in a com - mercial lease is appropriate and sufficient. 6.20 Registration Requirements South Carolina does not require that the lease itself be notarised, but a memorandum of lease requires notarisation to be recorded. If the lease permits the recordation of a memorandum of lease, the tenant typically bears the cost of the de minimis recording fees, and it would be worth - while for the tenant to co-ordinate the same, as recording the memorandum of lease puts third parties on notice of the tenant’s occupancy rights and can be used to provide notice of spe - cial lease terms such as a purchase option. 6.21 Forced Eviction If the lease contains appropriate language, a tenant in default under a lease may be evicted prior to the expiration of the lease by way of a summary eviction proceeding. Eviction proceed -
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