Quick Reference: What the Residential Landlord and Tenant Act Does Not Govern

A Charleston management company takes on a furnished downtown unit. The owner wants flexibility, so the arrangement is month to month, marketed to relocating professionals, typically occupied for six to ten weeks at a time.

The manager runs it on the firm's standard South Carolina process: the § 27-40-710(B) five-day nonpayment framework, the § 27-40-410 security deposit rules including the 30-day itemisation and return period, the § 27-40-440 repair duties.

Some of that may not apply. Under § 27-40-120(4), the Residential Landlord and Tenant Act does not govern "transient occupancy in a hotel, motel, or other accommodations subject to the sales tax on accommodations as provided by Section 12-36-920." Note the words "or other accommodations." The exclusion is not limited to hotels and motels.

That classification matters before a manager applies the state landlord-tenant framework, and it can also affect which local zoning, permitting, tax and licensing rules need to be considered for the property.

Section 27-40-120 lists nine arrangements the Act does not govern. Most published South Carolina guidance mentions them in a sentence, if at all. Here is what each says, and what it means operationally.

Step 1: The Transient Occupancy Exclusion, and Where 90 Days Comes From

Exclusion (4) is defined by reference to a tax provision rather than by a day count of its own.

The 90-day rule comes from the accommodations-tax statute, not from § 27-40-120. Section 12-36-920(A) provides: "The gross proceeds derived from the lease or rental of sleeping accommodations supplied to the same person for a period of ninety continuous days are not considered proceeds from transients."

The South Carolina Department of Revenue applies that in worked examples using the phrase "90 continuous days or more." In its illustration, a home rented to one vacationer for 120 consecutive days is not subject to the accommodations tax for that letting, while charges to other vacationers renting for less than 90 consecutive days are subject to it.

What the Attorney General concluded. In an opinion dated 17 November 2023, addressing whether a guest in a hotel, motel or other transient lodging facility can become a tenant under the Act, the Attorney General set out the dividing line: § 27-40-120(4) excludes transient occupancy subject to the § 12-36-920 accommodations tax, and that tax statute supplies the number.

For purposes of the transient-occupancy analysis, a guest staying 90 consecutive days or more is no longer treated as a transient under the accommodations-tax framework, so § 27-40-120(4)'s transient-occupancy exclusion may no longer apply. But that does not automatically make the guest a tenant.

Duration alone does not make someone a tenant. Drawing on prior opinions and the South Carolina Supreme Court's decision in Stewart-Jones Co. v. Shehan, the Attorney General emphasised that a landlord-tenant relationship cannot exist without a contract, express or implied, between the parties, and that whether one exists is decided case by case.

That is the single most important point in this article. Ninety days changes the tax analysis. It does not by itself create a tenancy.

Local definitions are a separate question. A municipality may define and regulate short-term rentals differently from the state's accommodations-tax framework. The local definition should not be substituted for the state-law analysis under § 27-40-120(4) and § 12-36-920.

And note the six-room carve-out. Section 12-36-920(A)(1) provides that the tax does not apply where the facilities consist of less than six sleeping rooms, contained on the same premises, which is used as the individual's place of abode. Since exclusion (4) is keyed to accommodations subject to that tax, the carve-out is part of the analysis.

Because the classification turns on occupancy duration per occupant, on tax treatment, and on whether a contract exists, the record has to carry the start date, the occupant, the intended duration and the agreement itself. Holding that through contracts and renewals is what lets you answer the question at intake rather than in a dispute.

Step 2: Ninety Days Appears in More Than One Statute

South Carolina's Vacation Rental Act, at Title 27 Chapter 50, uses a 90-day figure of its own, and its definition contains the point that makes this whole area confusing.

Section 27-50-230(3) defines a "vacation rental" as "the lease, sublease, or other rental of residential property for a period of fewer than ninety days, except that it does not include rental of residential property on a weekly or monthly basis pursuant to Chapter 40 of this title, the South Carolina Residential Landlord and Tenant Act."

That means the Chapter 50 definition cannot be read as a simple "under 90 days equals vacation rental" rule. Its express Chapter 40 exclusion matters: a weekly or monthly rental made under the Residential Landlord and Tenant Act is outside the vacation rental definition even though it runs for fewer than ninety days.

So 90 days appears in more than one South Carolina statutory framework, and those statutes answer different questions. The accommodations-tax statute determines when sleeping accommodations are no longer treated as furnished to transients. Section 27-40-120 determines whether the Residential Landlord and Tenant Act applies. And Chapter 50 defines vacation rentals for its own purposes, expressly carving out Chapter 40 weekly and monthly rentals.

A property should not be classified simply by counting days on a calendar.

Step 3: Why the Answer Changes Everything Downstream

If an arrangement falls within § 27-40-120, the chapter does not govern it.

Deposits. The § 27-40-410 itemisation requirements, the forwarding-address protection and the treble damages exposure set out in our guide to South Carolina security deposit laws sit in the chapter.

Repairs and essential services. The five landlord duties in § 27-40-440, the 14-day termination mechanism in § 27-40-610, and the chapter's specific rule distinguishing essential-services cost deductions from ordinary repair-and-deduct remedies, are covered in our guide to South Carolina landlord repair obligations.

Termination notices. The five-day nonpayment framework and the seven and thirty-day periodic notices in §§ 27-40-710 and 27-40-770 are chapter provisions.

Possession and ejectment require separate analysis. The South Carolina ejectment provisions in Title 27, Chapter 37 operate separately from the Residential Landlord and Tenant Act. Concluding that Chapter 40 does not govern an arrangement does not mean that no statutory procedure governs recovery of possession. The appropriate procedure depends on the legal character of the occupancy and the applicable law, and the process itself is covered in our guide to the South Carolina eviction process. Confirm the correct route before taking action.

Step 4: Purchasers in Possession, Exclusion (2)

The Act does not govern occupancy under a contract of sale of a dwelling unit or the property of which it is a part, if the occupant is the purchaser or a person who succeeds to his interest.

A buyer taking early possession before closing is not a tenant under the chapter, and neither is someone who succeeds to the purchaser's interest.

The 2017-2018 bill materials illustrate the issue: proposed legislation sought to give sellers specific remedies against purchasing parties occupying before completion, because the Act did not apply to that arrangement. The bill itself does not establish current law, so managers should not infer from its proposal that a seller has no other legal remedies.

Step 5: Employee Occupancy, Exclusion (5)

The Act does not govern occupancy by an employee of a landlord whose right to occupancy is conditional upon employment in and about the premises.

Read the qualifier. It is not any employee who happens to rent from their employer. Resident managers, on-site maintenance staff and caretakers housed as part of the role sit here, provided occupancy is genuinely conditional on the employment.

The arrangement should clearly document the connection between employment and occupancy. That documentation can help establish whether the employee's right to occupy was actually conditional upon employment in and about the premises.

If the employment relationship ends, the parties should not assume that possession can be recovered automatically; the contractual arrangement and applicable law should be reviewed before taking action.

Step 6: Condominiums, Co-ops and Agricultural Premises

Exclusion (6) removes occupancy by an owner of a condominium unit or a holder of a proprietary lease in a cooperative.

Note what it does not do. It excludes the owner's occupancy. A condominium unit rented by its owner to a tenant is a different arrangement, and the association's declaration, bylaws and rules apply alongside whatever tenancy law governs.

Exclusion (7) removes occupancy under a rental agreement covering premises used by the occupant primarily for agricultural purposes. The test is the occupant's primary use.

Exclusion (8) removes occupancy under a rental agreement in premises regulated by Chapter 32 of Title 27, the Vacation Time Sharing Plan Act. Note that this is a different chapter from the Vacation Rental Act at Chapter 50.

Step 7: Institutions, Organisations and Shelters

Exclusion (1) removes residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious, or similar service. The operative word is incidental.

Exclusion (3) removes occupancy by a member of a fraternal or social organisation in the portion of a structure operated for the benefit of the organisation.

Exclusion (9) removes residence, whether temporary or not, at a charitable or emergency protective shelter, public or private. Duration does not bring a shelter residence inside the chapter.

Step 8: What May Apply Instead

Falling outside Chapter 40 does not by itself determine which other laws apply. The replacement legal framework depends on the nature of the occupancy.

The Vacation Rental Act, Title 27 Chapter 50, where the arrangement falls within the § 27-50-230(3) definition. Note that the chapter carries its own obligations, including requirements around vacation rental agreements and rental management company trust accounts.

The Lodging Establishment Act. The 2023 Attorney General opinion addresses the relationship between that Act and the Residential Landlord and Tenant Act, and indicates that a transient guest is covered by the Lodging Establishment Act rather than tenant law. Whether it applies depends on the arrangement and on the definitions in Title 45.

Accommodations tax. Section 12-36-920 governs the state sales-tax treatment of taxable accommodations, subject to its statutory exceptions, and separate local accommodations taxes may also apply. The party responsible for collection and remittance should be identified under the applicable tax rules rather than assumed from the management arrangement.

Local zoning, permitting and business licensing. Cities including Charleston and Columbia operate their own regimes, which can impose a separate regulatory layer regardless of whether the Act applies to the particular occupancy. These are municipal, they change, and they differ between neighbouring jurisdictions, including between the City of Charleston and North Charleston, Mount Pleasant, Isle of Palms and Folly Beach. Confirm the current requirements directly with the city for each property.

Chapter 37 ejectment, and general contract and common law.

Because the surviving obligations are largely tax and permitting obligations tied to the property and the letting pattern, they belong on the property record and the operating calendar. Surfacing renewal dates, permit expiries and filing obligations through dashboards and reports, and routing recurring filings as dated tasks through workflow customization, is what keeps a non-tenancy letting compliant.

Step 9: How to Classify an Arrangement

First, check the nine exclusions on their own terms. Exclusions (1), (2), (3), (5), (6), (7), (8) and (9) do not turn on duration at all.

Second, if it looks transient, work through exclusion (4). Is the occupancy transient, and are the accommodations subject to the § 12-36-920 tax, bearing in mind the six-room carve-out? Under that statute, accommodations supplied to the same person for ninety continuous days are not considered proceeds from transients.

Third, remember duration is not the whole test. A stay of 90 consecutive days or more means the occupant is no longer treated as a transient, but a landlord-tenant relationship still requires a contract, express or implied, determined case by case.

Fourth, check whether Chapter 50 applies, remembering that § 27-50-230(3) excludes weekly or monthly rentals made pursuant to Chapter 40 from the vacation rental definition.

Fifth, identify what other laws may apply, which may include the Lodging Establishment Act, accommodations-tax laws, local zoning and permitting, business licensing, Chapter 37 ejectment, and general contract law.

And sixth, document the classification at intake. Keeping the occupancy record complete from the first day, as a Tenant 360 View approach does, is what makes the classification defensible rather than reconstructed.

Common South Carolina Classification Mistakes Property Managers Make

1. Reading exclusion (4) as hotels and motels only
It says "hotel, motel, or other accommodations subject to the sales tax on accommodations."

2. Treating a day count as the whole test
A landlord-tenant relationship requires a contract, express or implied, and is determined case by case.

3. Confusing the 30-day and 90-day questions
Some local zoning and short-term rental ordinances use a 30-day threshold, but § 27-40-120(4) incorporates the accommodations-tax framework in § 12-36-920.

4. Saying "more than 90 days"
The statute says a period of ninety continuous days, and Department of Revenue guidance uses 90 continuous days or more.

5. Reading § 27-50-230(3) as "under 90 days equals vacation rental"
It expressly excludes weekly or monthly rental of residential property pursuant to Chapter 40.

6. Overlooking the six-room carve-out
The accommodations tax does not apply where the facilities consist of less than six sleeping rooms on the same premises used as the individual's place of abode.

7. Measuring occupancy rather than occupant
The statute measures days supplied to the same person.

8. Assuming no statutory process applies to recovering possession
Chapter 37 ejectment is a separate chapter from the Act.

9. Treating a rented condominium as excluded
Exclusion (6) covers occupancy by the owner of a condominium unit or holder of a proprietary lease.

10. Assuming any employee renting from an employer is excluded
Exclusion (5) requires the right to occupancy to be conditional upon employment in and about the premises.

11. Applying exclusion (1) to any institutional setting
The residence must be incidental to detention or the provision of the listed services.

12. Thinking a long stay brings a shelter inside the Act
Exclusion (9) applies whether temporary or not.

13. Confusing Chapter 32 with Chapter 50
Exclusion (8) refers to the Vacation Time Sharing Plan Act at Chapter 32, distinct from the Vacation Rental Act at Chapter 50.

14. Assuming the management agreement alone determines tax responsibility
Tax collection, registration and remittance responsibilities depend on the applicable tax law and the parties' roles. Confirm the requirements, then document responsibility in the management agreement.

15. Classifying once and never revisiting
A change in duration, occupancy structure, contract terms or use can change the legal analysis.

16. Applying City of Charleston rules to neighbouring municipalities
North Charleston, Mount Pleasant, Isle of Palms and Folly Beach operate their own regimes.

Conclusion

South Carolina's Residential Landlord and Tenant Act is the framework behind the deposit rules, the repair duties and the termination notices. Section 27-40-120 decides whether that framework applies at all.

Nine exclusions, and most are structural. Institutions, purchasers in possession, fraternal and social organisations, transient occupancy, conditional employee occupancy, condominium and co-op owner-occupiers, agricultural use, vacation time sharing, and charitable or emergency shelters.

Exclusion (4) is defined by tax treatment. Section 12-36-920 provides that accommodations supplied to the same person for ninety continuous days are not considered proceeds from transients, and Department of Revenue guidance applies that as 90 continuous days or more.

But the Attorney General's qualification is the point to carry away. A stay of 90 consecutive days or more means the occupant is no longer treated as a transient, so the exclusion may no longer apply. Duration alone does not make someone a tenant: a landlord-tenant relationship requires a contract, express or implied, and the determination is case by case.

And ninety days appears in more than one statute. Section 27-50-230(3) defines a vacation rental as residential property rented for fewer than ninety days, except weekly or monthly rentals made pursuant to Chapter 40. The tax rule, the vacation rental definition and § 27-40-120 answer different questions.

For teams managing South Carolina portfolios, the classification belongs at intake, in writing, with the occupant, the intended duration, the agreement, the tax treatment and the permit position recorded. Every downstream obligation, and every other article in this series, depends on getting that first question right.

This blog is for informational purposes only and does not constitute legal or tax advice. Exclusions from the South Carolina Residential Landlord and Tenant Act are at S.C. Code Ann. § 27-40-120, with a history of 1986 Act No. 336, § 1 and 1998 Act No. 382, § 1. The accommodations sales tax is at § 12-36-920, which provides that gross proceeds from sleeping accommodations supplied to the same person for a period of ninety continuous days are not considered proceeds from transients, and which contains its own exceptions including the less-than-six-sleeping-rooms carve-out. The conclusions attributed to the South Carolina Attorney General reflect an opinion dated 17 November 2023; Attorney General opinions are advisory and not binding on a court. The South Carolina Vacation Rental Act is at Title 27, Chapter 50, with definitions at § 27-50-230, and is distinct from the Vacation Time Sharing Plan Act at Title 27, Chapter 32. Bills in the 2017-2018 session proposed amending §§ 27-40-120(2) and 27-40-710 in relation to purchasers in possession and did not become law. Ejectment procedure sits separately at Title 27, Chapter 37, and lodging establishments are addressed in Title 45. Local zoning, short-term rental permitting, business licensing and local accommodations tax requirements are municipal, change independently of state law, and differ between neighbouring jurisdictions; this article does not set out the current requirements of the City of Charleston, the City of Columbia or any other municipality. Verify the current statutory text with the South Carolina Legislature, confirm tax obligations with the South Carolina Department of Revenue, confirm permitting and licensing directly with the relevant municipality, and consult a licensed South Carolina attorney.

Frequently Asked Questions

Q1. What does § 27-40-120 do?
It lists nine arrangements not governed by the South Carolina Residential Landlord and Tenant Act, so the chapter's deposit, repair and termination provisions do not apply to them.

Q2. Does the Act apply to short-term rentals?
Section 27-40-120(4) excludes transient occupancy in a hotel, motel, or other accommodations subject to the accommodations sales tax under § 12-36-920. Whether a particular letting is within it depends on transience and tax treatment.

Q3. Where does the 90-day figure come from?
Not from § 27-40-120(4). It comes from § 12-36-920, which provides that accommodations supplied to the same person for a period of ninety continuous days are not considered proceeds from transients. The Attorney General has therefore stated that an occupant staying 90 consecutive days or more is no longer treated as a transient, but whether the Act applies still depends on whether a landlord-tenant relationship was established.

Q4. So after 90 days a long-term guest is automatically a tenant?
No. Length of stay is not enough. A landlord-tenant relationship still requires a contract, express or implied, and whether one exists is decided case by case.

Q5. Is any rental under 90 days a vacation rental?
No. Section 27-50-230(3) defines a vacation rental as residential property rented for fewer than ninety days, but expressly excludes rental on a weekly or monthly basis pursuant to Chapter 40.

Q6. Is a rented condominium excluded from the Act?
Exclusion (6) covers occupancy by the owner of a condominium unit or a holder of a proprietary lease in a cooperative. A unit rented by its owner to a tenant is a different arrangement.

Q7. Is a buyer in possession before closing a tenant?
Under exclusion (2), occupancy under a contract of sale where the occupant is the purchaser or a person succeeding to that interest is not governed by the Act.

Q8. If the Act does not apply, what does?
It depends on the arrangement. Possibilities include the Vacation Rental Act, the Lodging Establishment Act, accommodations-tax laws, local zoning and permitting, business licensing, the Chapter 37 ejectment provisions, and general contract law.