S.C. Code Ann. § 27-40-640
Landlord's noncompliance as defense to action for possession or rent
Operative Text
(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 SECTION 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 SECTION 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 SECTION 27-40-790.
Section 27-40-640 of the South Carolina Residential Landlord and Tenant Act establishes that a tenant facing an eviction or rent lawsuit may raise the landlord's own failures—such as breaches of the rental agreement or violations of the statutory duty to maintain the premises—as defenses or counterclaims in that same proceeding. However, the tenant's ability to use a maintenance failure as a defense can be waived if the landlord did not receive adequate advance notice: at least fourteen days before rent was due for non-essential service violations, or a reasonable opportunity to make emergency repairs for essential services. If a tenant raises a defense or counterclaim that lacks merit and was not brought in good faith, the landlord may recover actual damages plus reasonable attorney's fees.
Plain English — not legal advice.
Under S.C. Code Ann. § 27-40-640, landlords pursuing eviction or rent collection actions should be aware that tenants are permitted to raise habitability failures and lease breaches as defenses or counterclaims in the same proceeding. Operators who maintain clear, dated records of all maintenance notices and repair responses are generally better positioned to demonstrate that proper notice was received and acted upon, which is directly relevant to whether a tenant's waiver applies. When a tenant's defense or counterclaim is found to be without merit and not raised in good faith, § 27-40-640 allows the landlord to seek actual damages and reasonable attorney's fees in addition to any other recovery.
General guidance for property managers — not legal advice for your specific situation. Consult an attorney for advice on your case.
Section 27-40-640 gives tenants the right to assert a landlord's failure to maintain the premises—whether under the lease or under S.C. Code Ann. § 27-40-440—as a defense or counterclaim when facing an eviction action for nonpayment of rent or a lawsuit to collect rent. To preserve this right, tenants generally need to have given the landlord proper advance notice of the problem before rent was due: fourteen days for non-essential service issues, or timely notice allowing emergency repairs for essential services. Tenants who believe this provision applies to their situation may wish to consult a tenant-rights organization or legal aid office to understand the range of options available, including raising the defense in court or filing a counterclaim.
General guidance for tenants — not legal advice for your specific situation. Consult a tenant-rights organization or attorney for advice on your case.
Generated October 16, 2026 — auto-generated, not yet human-reviewed. See /transparency for methodology.
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