South Carolina Lets HOAs Restrict Leasing, But It Must Be Recorded

Start with what is not there. The South Carolina Homeowners Association Act, S.C. Code Sections 27-30-110 through 27-30-170, is a short statute of seven sections, and none of them mention leasing, renting, tenants, short-term rentals or occupancy. Section 27-30-120 defines board, declarant, declaration, governing documents, homeowner, homeowners association, management company and unit. Section 27-30-130 governs recording. Section 27-30-140 requires forty-eight hours' notice before a budget-increase vote. Section 27-30-150 imports nonprofit-corporation document-access rights. Section 27-30-160 gives magistrates court concurrent jurisdiction over monetary disputes. Section 27-30-170 says nothing in the article may conflict with the South Carolina Nonprofit Corporation Act. There is no substantive owner-rights provision in the Act, and therefore nothing that caps an association's leasing authority.

For condominiums, South Carolina goes further and assumes leasing restrictions will exist. The Horizontal Property Act requires the master deed or lease creating the regime to be recorded with the register of mesne conveyance or clerk of court of the county where the property is located, and to express a specific list of particulars. Item (h) of that list, in Section 27-31-100, is "Any restrictions or limitations on the lease of a unit including, but not limited to, the amount and term of the lease." That is a disclosure and recording mandate, not a limit. It tells a South Carolina condominium buyer where to look, since a rental cap, a minimum lease term or a minimum rent figure has to appear in the recorded master deed rather than in an unrecorded board policy, and it confirms that the legislature contemplates associations setting both the term and the amount of a lease.

For planned subdivisions the anchor is Section 27-30-130. Subsection (A)(1) provides that in order to be enforceable, a homeowners association's governing documents must be recorded in the clerk of court's, Register of Mesne Conveyance (RMC), or register of deeds office in the county where the property is located. Subsection (B)(2) adds that to remain enforceable, rules, regulations, and amendments to rules and regulations must be recorded in that same office by January tenth of each year following their adoption or amendment. So a board that adopts a rental cap by resolution in March has until January tenth of the following year to record it, and if it never does, the cap stops being enforceable. Subsection (B)(1) separately makes rules effective on passage and requires them to be made accessible to a member on request, unless posted conspicuously in a common area or posted for download on an association website.

Amendment thresholds also come from the governing documents rather than from a general statute. The one voting figure the Horizontal Property Act supplies is in Section 27-31-160: a condominium's bylaws must provide that a majority of at least fifty-one percent is required to adopt decisions, and the sole owner, or co-owners representing two thirds of the total value of the property, may modify the system of administration, with no modification operative until it is embodied in an instrument recorded in the same office and the same manner as the master deed and original bylaws. Those are administration rules, not leasing rules, and a leasing restriction that belongs in the master deed under Section 27-31-100(h) has to be changed by amending that recorded instrument.

The practical consequence for a South Carolina owner is that arguments about rental restrictions are won on the record, not on the statute. The questions that matter are whether the restriction appears in a recorded declaration or master deed, whether a board-level rule was recorded by the January tenth deadline, and whether the covenant by its own terms applies to the owner. There is no state-law argument that a rental ban is void because it was adopted after purchase, because it exceeds a percentage cap, or because it failed to clear a statutory supermajority, because South Carolina has enacted none of those protections.

Enforcement of a leasing covenant is a private matter. In a condominium, Section 27-31-170 provides that a co-owner's failure to comply with the bylaws, the administrative rules and regulations adopted under them, or the covenants, conditions and restrictions in the master deed or lease is grounds for a civil action to recover sums due for damages or injunctive relief, or both, brought by the administrator, the board of administration or other form of administration specified in the bylaws on behalf of the council of co-owners, or in a proper case by an aggrieved co-owner. An association that wins typically obtains an injunction ending the lease, not merely money.

Where the association pursues money, Section 27-30-160 lets it, or the owner, use the magistrates court: pursuant to Section 22-3-10, the magistrates court has concurrent jurisdiction to adjudicate monetary disputes arising under the Homeowners Association Act, provided the dispute meets that section's jurisdictional requirements. Larger claims and all injunction requests go to circuit court.

Unpaid assessments tied to a rental dispute are a serious matter in South Carolina condominiums. Section 27-31-210(a) makes all sums assessed but unpaid for an apartment's share of common expenses a lien on that apartment, prior to all other liens except tax liens on the apartment and duly recorded mortgages and other liens. The lien may be foreclosed by suit in the same manner as a mortgage of real property, the owner must pay a reasonable rental for the apartment after the foreclosure action commences, the plaintiff is entitled to appointment of a receiver to collect those rents, and the association may bid in the apartment at the foreclosure sale and then hold, lease, mortgage or convey it. The association may also sue for a money judgment without foreclosing.

An owner's best defense remains the recording rules. If the leasing restriction is not in the recorded declaration or master deed, Section 27-30-130(A)(1) makes it unenforceable, and if it is a board rule that missed the January tenth recording deadline in Section 27-30-130(B)(2), it does not remain enforceable. The South Carolina Department of Consumer Affairs will log the complaint under Section 27-30-340 but is barred by subsection (E) from issuing guidelines or acting as an arbiter.