An Overview of Property Abandonment in SC

Property Abandonment Defined

To begin, property abandonment is defined within the public policy, "an act of the owner indicative of a purpose to abandon the property and an external act of control over it evidencing that intent." (Conner v. Carolina Theaters of Greenville, S.C., 79 S.E.2d 1, 1953). In other words, if an owner gives up possession of property without giving any indication as to where it should go or what should happen to it, that may be a sign of abandonment. It is also instructive to note how a court may rule on potential abandonment when a property has sat vacant for a prolonged period of time (over two years). "While the mere non-user of property , standing alone, is not sufficient to establish abandonment, proof for such period of time, coupled with evidence of other acts of the owner, is some evidence to be left to the jury of an intention on the part of the owner not to claim the property." (Lester v. McManus, 2003). As a general rule of thumb, you can presume a property to be abandoned once there have been no payments or other contact regarding the property in two years.

South Carolina Law

The legal framework for determining abandonment differs from state to state. In South Carolina, the law of abandonment includes a criminal statute (S.C. Code Ann. § 16-11-760) and case law.
S.C. Code Ann. § 16-11-760 defines "abandonment" and "abandon" and creates two criminal offenses: abandonment of a minor child and abandonment of a dead body. While the criminal code is not cited often in civil cases, it can provide context for abandonment.
In Ex parte Gonzalez, 360 S.C. 510, 602 S.E.2d 740 (2004), the South Carolina Supreme Court addressed a case where the mother of two children, one of whom was disabled, had been killed by the father and the State sought custody of the living son, Cruz.
Finding that the mother of Cruz had permanently abandoned him, since she had only visited him four times in the seven years before her death, the Court held that the best interest of the child would be served if the State were granted custody over Cruz’s right to his biological parents. Id. at 517, 602 S.E.2d at 743. In short, in South Carolina, for a parent to abandon a minor child, "the failure to care for and support a child must be combined with a conscious, intentional act of forsaking or renouncing all parental duties and relinquishing all parental claims." Id. at 515, 602 S.E.2d at 742-43. The Court pointed out that in most of its cases where abandonment was found, the parent had voluntarily placed the child for adoption or left the child with another caregiver with no further contact. Id. at 519, 602 S.E.2d at 744-45. The Court further stated that mental incapacity of the parent to care for a child is not sufficient to find abandonment. Id. at 519-20, 602 S.E.2d at 745.
Finally, the case of Boland v. Boland, 339 S.C. 172, 528 S.E.2d 651 (Ct. App. 2000), illustrates the difficulty proving abandonment of property. In Boland, the Court of Appeals held that abandonment of property may be inferred under certain circumstances, such as a failure to redeem property within a reasonable time period after the purchase price is paid by another party. Id. at 177, 528 S.E.2d at 653-54. The Court also stated that the purchase of foreclosure property "is not a mere purchase of the property but an enforcement of the mortgage lien so as to destroy the equity of redemption of the mortgagor." Id. at 176, 528 S.E.2d at 653.

Declaring a Property to be Abandoned

While tenants have specific obligations under the South Carolina Tenant Act, owners of rental property and homeowners are not without their own responsibilities under the law. As an example, when a tenant has voluntarily abandoned the premises, the landlord has a duty to examine the premises, assess the damages and otherwise take all reasonable steps to minimize the impact of the tenant’s abandonment. S.C. Code § 27-40-740.
There are many reasons why a property owner may want to declare a property abandoned. For homeowners, they may wish to be free of continuing obligations related to a property that they know is vacant. For landlords, the abandonment of a tenant may provide the opportunity to terminate the relationship, whether or not the lease includes an express provision to do so. And then there give may be instances where a local entity or individual seeks to have a property declared abandoned to reduce an immediate threat to public health or safety.
The process of having a property declared abandoned will vary based on who is seeking the declaration. For homeowners, S.C. Code § 16-11-710 authorizes "disinterested persons" to request that a real property be declared abandoned by the court. "Disinterested persons" include charitable organizations, governmental agencies or political subdivisions, private nonprofit organizations, a nonprofit owner association, or a nonprofit housing corporation. For landlords, a tenant who vacates premises shall be deemed to have abandoned his interest in the premises if the rent due increases and the tenant does not pay the increased rent. S.C. Code § 27-40-740. Once property has been deemed abandoned, the owner may remove all personal property therefrom without liability. Additionally, the owner may take possession of the property as provided by the South Carolina Residential Landlord and Tenant Act. Id.
If a local authority wishes for a property to be declared abandoned, S.C. Code § 5-7-30 provides that a municipality must first adopt an ordinance authorizing the municipal governing body to designate a property as abandoned. The ordinance must also provide notice to the public, which is to be accomplished by the municipality placing advertisements in newspapers and providing individual notice by mail or e-mail. The ordinance becomes effective thirty days before a hearing is held by the municipal governing body. Id.
If the governing body concludes, by a clear and convincing evidence standard, that a property is abandoned, it will adopt a resolution declaring the property abandoned. The property owner will receive a copy of the resolution and must then be given 180 days to either demolish or rehabilitate the structure. Id.
The process for declaring a property abandoned may differ based on whether the property is a residential dwelling, a vacant residential building or product, or an abandoned residential develop project. For a vacant residential building or product or an abandoned residential development project, S.C. Code § 6-33-30 provides additional requirements and imposes deadlines on the local authority that has declared the property abandoned. For abandoned residential development projects, the statute includes the right of a municipality to recover its costs through the imposition of a lien on the property.

Effects of Abandonment

Abandoned property can hold a host of problems for property owners and potential purchasers alike. For property owners, loss of property through abandonment can result in economic loss. Property that is abandoned may or can become a public nuisance. This is especially true in the context of vacant lots and commercial properties. Such lots and properties attract crime, build-up tons of litter and trash, and are an eyesore to the community.
For potential purchasers, abandoned property also carries risks. Such risks are both financial and legal. For example, if a potential purchaser of a vacant lot fails to exercise due diligence, there is a risk that the governmental authority will have a nuisance lien against the property. That lien will have to be satisfied prior to any transfer of title. Another concern is the impact that vacant or abandoned lots have on surrounding property values. Finally, there are environmental risks. Environmental assessments, to the extent necessary, should always be performed on vacant lots prior to any acquisition.

How to Stop an Abandonment

Actions and communications can be proactively taken by you to make sure your property is not considered abandoned. First of all, always contact your insurance agent when you are going on a vacation or when you plan to leave the residence for an extended period of time. Your insurance agent may have some preemptive tips to give you to help keep your property secure. There are several security measures you can put in place before you leave. One of the most effective is hiring a watchman or "concierge" service to keep an eye on the property. Also, you should have a trusted neighbor who will regularly check the condition of your property and ensure it is secure . It is also a good measure to remove all valuables from the property and to lock up all windows and doors. You may want to enlist the help of neighbors (or your watchman) to place any packages that may be delivered while you are gone on the inside of the home and out of view to minimize any visual signs that your home is not occupied. When you return home, it is not a bad idea to contact your local sheriff’s office and see if they can provide any tips on ways to prevent your home or property from being considered abandoned.
If you or even a family member has been absent from home for longer than usual, then you may want to consider putting some of these preventive measures in place as soon as possible to avoid a potential adverse title result to your property.

Practical Examples and Case Studies

The issue of property abandonment often arises in a variety of contexts. For example, in the case of utilities, an abandoned property may turn off water service if an owner fails to pay a bill. In some cases with the court system, the judicial proceedings of an inactive case are dismissed for lack of prosecution after a certain period of time. In the context of trespass to try title actions, however, the requirements for establishing abandonment are entirely different.
In 1991, the Court of Appeals issued a decision in the case of Helderman v. Periano, dealing with this factual situation. The facts themselves were straight forward: The decedent owned residential property on Folly Beach, and he died in 1981, leaving a will bequeathing the property to his son. The son then died in Charlotte, North Carolina, in 1990, and left his estate to several parties, including his cousin, the plaintiff in the case.
The plaintiff then sued to gain possession, claiming that his cousin’s estate had abandoned the Folly Beach property because it had not paid property taxes, or taken any other action to possess, occupy, improve, develop, repair, or in any way control the property. Testimony was not taken to support the claim, as the plaintiff asserted essentially that it was the cousin’s estate’s burden to prove that it had not abandoned the property, and that it failed to meet that burden.
The trial court granted the defendant’s motion for summary judgment, finding that there was not sufficient evidence to support a claim for abandonment, but that did not end the case. The case was appealed to the South Carolina Supreme Court, which reversed the summary judgment order, and found that the plaintiff had presented a prima facie case of abandonment to establish a trespass to try title action.
Interestingly, and perhaps in a warning shot of sorts to attorneys trying such cases, the court explained that the burden of disproving abandonment shifts to the other party once the claimant has presented the evidence. Once the plaintiff has set forth his case, the other party must meet the burden to provide evidence of due diligence in efforts to maintain possession, protection, improvement, development or control of the property in question.

How to Obtain Legal Assistance

When you face property abandonment issues, it’s extremely important to get a professional to help you sort through them. There are many ways to find legal assistance or resources regarding property abandonment laws in South Carolina. Online legal directories, such as the South Carolina Bar Association’s lawyer referral service and the Lawyer Exchange, can help you find qualified lawyers in your area, as can Facebook groups such as Charleston Homes, Real Estate News and Discussion. You can also ask for recommendations from real estate agents, friends, family or other professionals who do business with your potential attorney or legal advisor. Don’t forget to contact family lawyers , general practitioners, and other law firms that may focus on estates and property rights.
Keep in mind that because property abandonment involves both real property and personal property, you’ll need a qualified lawyer who has experience in handling these types of cases. Finding the right legal advisor is crucial to protecting or disposing of an abandoned property, so take the time to make sure that he or she has the experience and insight needed. If you are a landowner dealing with abandonment issues, the value of your property could be affected by how the issue is handled.