Attorney/State Legistor delaying my Eviction till August

[John Underwood]

I sold a rental property that was generating rent. I did a 1031 exchange added some money to it and bought another property that I knew had some title issues that I believe are low risk and the risk to reward was hugely in my favor.

The house has a couple of tax deeds in the chain of title, both over 10 years old. There is a law in SC that basically says you can't challenge a tax deed after 2 years. 

I met with the occupants once and could tell they had no evidence to keep me from evicting them.

There was also a foreclosure against them from their mortgage company and an attempt to Quiet the Title. This was cancelled and a mortgage release filed. I believe once the mortgage company realized that the occupants didn't own the house anymore they threw in the towel. I am trying to contact the attorney involved to get more details on why they gave up.

So right before the eviction court date they hired an attorney who is also a SC state legislator. This attorney took the case while Legislature was in session knowing full well he had no intention of going to court till the session is over.

I received a copy of a SC Supreme court ruling that Attorney/Legislators are exempt from showing up to court while the Legislature is in session.

So now I am sitting on my hands while the occupants continue to live in my newly acquired house till at least August.

There are other attorneys at this firm so this is clearly a stalling tactic and seems unethical to me.

I may start a Quiet title to at least keep something moving in the mean time. Once it gets to the part where a court date is set they will just hire this same attorney to stall any forward motion on this also.

I am tempted to send a letter to the SC Supreme Court and the Bar association and respectfully complain about this abuse of power.

Open to any suggestions that anyone has on this one.

[Ryan Nichols]

By way of background, it appears this Administrative Order and the prior Orders it supersedes were necessitated as a result of the Court's ruling in Williams v. Bordon's Inc., 274 S.C. 275 (1980), which held that S.C. Code Section 2-1-150 was unconstitutional as violative of the principle of separation of powers in so far as it attempted to exercise the ultimate authority to determine when, and under what circumstances, lawyer-legislators may be exempt from court appearances.  In other words, the court held it was not up to the legislative branch to have the final say on when lawyer-legislators would be exempt from court appearances, since "[t]he authority to determine whether a continuance should be granted or denied is inherent in the exercise of this judicial power, and cannot be exercised by the legislative branch of the government."  Thus, the need for the Administrative Order of the judicial branch.

With that said, I would direct you to S.C. Code Section 2-1-150, particularly the second paragraph.  It states that the legislative exemption "shall be a matter of right except in the following situations and under the following circumstances, and none other, to wit:

(1) where litigation involves emergency relief and irreparable damage;

(2) where such attorney has previously been granted continuances for the same case for a period greater than one hundred eighty days; or

(3) in a criminal case where the client is incarcerated unless the defendant shall give his written consent to the continuance.

The good news is, he's not going to be able to get another continuance down the road.  That is clearly not allowed under the statute.  And the Adminstrative Order issued by the judicial branch cannot directly contradict or supersede a statute.  That would also be an unconstitutional separation of powers violation.  The bad news is, you're likely out of luck for now, unless the end of session, unless he will consent to waive the protection, which he does not appear willing to do.  Your best best would be to try to put some political pressure on him, as others have suggested if you sincerely believe he is asserting the protection in bad faith solely for purposes of delay.  You could potentially file a motion for emergency relief and make the claim that you would suffer irreparable damage if you had to wait until the end of the legislative session.  These motions are most commonly seen in family court in the custody context.  I'm not so sure it would fly in this situation but maybe its worth a shot.  Chances are the magistrate will have never seen such a motion and won't have any idea what to do with it.  Will probably tell you that you can't do that, but he probably won't really know one way or the other.

disclaimer - I'm not your attorney and this is not legal advice.

Also - I'm an attorney in Greenville and a relative newbie investor (long time lurker, first time poster) and would love to connect.  If you want to message me directly and let me know more details, like who the legislator is, it's possible i may know somebody that knows somebody that could help.