When does a long-staying hotel or motel guest become a tenant with eviction protections in South Carolina?

Official title

Opinion addressing whether a guest staying in a hotel, motel or other facility meant for transient lodging can become a tenant for purposes of the South Carolina Residential Landlord Tenant Act.

Requester

Requested by Lieutenant Sean M. Bailey, York Police Department.

Plain-English summary

A York police lieutenant asked a question police get all the time: when a long-term hotel or motel guest refuses to leave, is that an eviction case (with court process and protections) or can the guest just be removed as a hotel customer? Put legally, does a hotel guest ever become a "tenant" under the South Carolina Residential Landlord and Tenant Act (SCRLTA)?

The Attorney General laid out the dividing line. The SCRLTA, in § 27-40-120(4), expressly does not apply to "transient occupancy in a hotel, motel, or other accommodations" that is subject to the accommodations sales tax under § 12-36-920. That sales-tax statute contains the key number: accommodations supplied to the same person for 90 continuous days are not treated as proceeds from a transient. So the 90-day mark is the line. A guest staying fewer than 90 consecutive days is a transient, covered by the Lodging Establishment Act rather than tenant law. A guest staying 90 consecutive days or more is no longer a transient, and the SCRLTA could apply.

But duration alone does not make someone a tenant. The AG, drawing on prior opinions and the Supreme Court's decision in Stewart-Jones Co. v. Shehan, emphasized that a landlord-tenant relationship cannot exist without a contract, express or implied, between the parties. So even past 90 days, whether tenant law applies turns on whether the parties formed a rental relationship. The AG stressed the answer is case-by-case.

What this means for you

Police officers called to a hotel or motel "won't leave" dispute

The opinion gives a workable rule of thumb: a guest of fewer than 90 consecutive days is a transient under the Lodging Establishment Act, not a tenant, so the formal eviction process under the SCRLTA generally does not apply. Once a guest has stayed 90 consecutive days or more, the situation may have crossed into landlord-tenant territory, but only if a rental relationship was formed by contract. The AG describes this as fact-specific, so officers facing the 90-day-plus situation are dealing with a legal gray area, not a clear call.

Hotel and motel operators

The line between a guest you can remove as a customer and a tenant you must formally evict tracks the 90-consecutive-day accommodations-tax rule. If you rent rooms to the same person for 90 days or more, you may be creating a relationship the SCRLTA can reach, especially if your arrangement looks like a rental by express or implied contract. Operators with long-term guests should get specific legal advice before treating a removal as a simple checkout.

Long-term hotel and motel guests

If you have stayed somewhere fewer than 90 consecutive days, the opinion treats you as a transient under the Lodging Establishment Act, not a tenant with eviction protections. After 90 consecutive days you may have tenant protections, but that depends on whether your arrangement amounts to a rental relationship by contract, not just on the passage of time.

Common questions

Q: Is a hotel guest a tenant in South Carolina?
A: Usually not. Section 27-40-120(4) excludes transient hotel and motel occupancy from the Residential Landlord and Tenant Act. The exclusion turns on whether the stay is "transient," which the law ties to the 90-day accommodations-tax rule.

Q: What is the 90-day rule?
A: Section 12-36-920 says accommodations supplied to the same person for 90 continuous days are not proceeds from a transient. So a stay of 90 consecutive days or more is not transient, and the guest can fall outside the accommodations tax and potentially within tenant law.

Q: So after 90 days a long-term guest is automatically a tenant?
A: No. The AG was clear that length of stay is not enough. A landlord-tenant relationship still requires a contract, express or implied. Whether one exists is decided case by case.

Q: Which law covers a short-term hotel guest?
A: The Lodging Establishment Act (§§ 45-2-10 et seq.), which regulates how innkeepers provide lodging to their customers, rather than the Residential Landlord and Tenant Act.

Q: Can a hotel just throw out a guest who has stayed months?
A: That is exactly the gray area the opinion flags. Once the stay passes 90 consecutive days and looks like a rental relationship, removing the person may require the protections of tenant law. The AG did not give a categorical answer because it depends on the specific facts.

Background and statutory framework

Three statutory schemes intersect here. The Lodging Establishment Act (chapter 2 of title 45) governs lodging of transients and defines lodging establishments to include hotels, motels, inns, and similar places furnishing rooms "to transients for a consideration." The Residential Landlord and Tenant Act (chapter 40 of title 27) governs the rental of dwelling units, but § 27-40-120(4) carves out transient hotel/motel occupancy subject to the accommodations tax. The accommodations sales tax statute, § 12-36-920, defines the boundary by stating that rooms supplied to the same person for 90 continuous days are not transient proceeds.

The AG relied on its own prior opinions interpreting these provisions. A 1986 opinion (issued before the Lodging Establishment Act) concluded that ejectment of hotel customers under tenant law required a case-by-case look, because without a contract no landlord-tenant relationship exists, quoting Stewart-Jones Co. v. Shehan. A 1994 opinion, just after the Act's passage, reached the same 90-day framework: a person renting sleeping accommodations for 90 or more consecutive days is not transient and could be governed by the SCRLTA, while a transient falls under the Lodging Establishment Act. This opinion reaffirms that line.

Citations and references

Statutes:
- S.C. Code Ann. § 27-40-120(4) (SCRLTA does not apply to transient hotel/motel occupancy subject to the accommodations tax)
- S.C. Code Ann. § 12-36-920 (accommodations sales tax; 90-continuous-day rule defining non-transient)
- S.C. Code Ann. § 45-2-20 (Lodging Establishment Act definition of lodging establishment)
- S.C. Code Ann. §§ 45-2-10 et seq. (Lodging Establishment Act)

Cases:
- Stewart-Jones Co. v. Shehan, 127 S.C. 451, 121 S.E. 374 (1924) (no landlord-tenant relationship without an express or implied contract)

Earlier AG opinions referenced:
- Op. Att'y Gen., 1986 WL 289851 (S.C.A.G. Oct. 16, 1986) (ejectment of hotel customers; case-by-case)
- Op. Att'y Gen., 1994 WL 444278 (S.C.A.G. July 26, 1994) (90-day line between transient and tenant)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-whether-a-guest-staying-in-a-hotel-motel-or-other-facility-meant-for-transient-lodging-can-become-a-tenant-for-purposes-of-the-south-carolina-residential-landlord-tenant-act/
• Original PDF: https://www.scag.gov/media/lymcijfi/03443483.pdf

Original opinion text

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Alan Wilson
Attorney General

November 1 7, 2023

Lieutenant Sean M. Bailey
Chief Brian A. Trail

York Police Department

Post Office Box 500
York, South Carolina 29745

Dear Lieutenant Bailey and Chief Trail:

We received your letter requesting an opinion of this Office concerning whether someone staying
as a guest in a motel, hotel, or other building primarily designed, built, and operated as transient
lodging can become a tenant for purposes of South Carolina Landlord-Tenant Laws.
Law/Analysis

Lodging of transients is generally governed by the Lodging Establishment Act (the “LEA”)
contained in chapter 2 of title 45 of the South Carolina Code (2017). According to the provisions
of the LEA, lodging establishments include “a hotel, motel, villa, condominium, inn, tourist court,
tourist camp, campground, bed and breakfast, residence, or any place in which rooms, lodging, or
sleeping accommodations are furnished to transients for a consideration.” S.C. Code Ann. §452-20 (2017) (emphasis added).

Chapter 33 of title 27 of the South Carolina Code (2007) provides the law governing landlords and
tenants and includes universal provisions governing leases. Chapter 40 of title 27 of the South

Carolina Code (2007) contains the South Carolina Residential Landlord and Tenant Act (the
“SCRLTA”), which governs the rental of dwelling units. Section 27-40-120 of the South Carolina
Code specifically excludes “(4) transient occupancy in a hotel, motel, or other accommodations
subject to the sales tax on accommodations as provided by § 12-36-920” from the provisions of
the SCRLTA. Section 12-36-920 allows for the imposition of a sales tax on “gross proceeds
derived from the rental or charges for any rooms, campground spaces, lodgings, or sleeping
accommodations furnished to transients by any hotel, inn, tourist court, tourist camp, motel,
campground, residence, or any place in which rooms, lodgings, or sleeping accommodations are
furnished to transients for a consideration.” Therefore, transients staying in hotels, motels, and
other lodging facilities are generally excluded from the SCRLTA. However, section 12-36-920
states: “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.” Id. Accordingly, if a lease or rental of sleeping accommodations is provided to the
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Lieutenant Sean M. Bailey
Page 2

November 17, 2023

same person for a period more than ninety consecutive days, it would not be subject to the
accommodations tax under section 12-36-920 and could be subject to the SCRLTA.
In your letter, you mention an opinion issued by this Office on October 16, 1986. We issued this
opinion prior to the enactment of the LEA, but discussed whether hotel or motel customers could
be ejected from the premises pursuant to the SCRLTA. Op. Att’y Gen., 1986 WL 289851

(S.C.A.G. Oct. 16, 1986). We first noted the South Carolina Supreme Court ‘“expressly stated
that without a contract between the parties, either express or implied, the landlord-tenant
relationship cannot exist.’” Id. (quoting Stewart-Jones Co. v. Shehan, 127 S.C. 451, 121 S.E. 374
(1924)). We then noted section 27-40-120(4) excludes the application of the SCRLTA to transient
occupancy in a hotel, motel, or other accommodations. Id. However, we ultimately concluded a
determination must be made on a case-by-case basis, stating:
[T]he particular situation would have to be examined. As noted, the mere fact
that a hotel or motel is involved does not resolve the question. In some
situations, depending on the “contract” between the parties, a landlord-tenant
relationship may exist. However, typically, it appears that in a situation where
an individual is a transient occupant of a hotel or motel, provisions applicable
to a landlord-tenant relationship, such as the procedure for ejectment of tenants,
would not apply.

li
In a 1994 opinion, just after the enactment of the LEA, we explored the intersection of the LEA
and the SCRLTA when asked about the application of the LEA to what would otherwise be
considered transient guest renting a lodging establishment on a month-to-month basis. Op. Att’y

Gen., 1994WL 444278 (S.C.A.G. July 26, 1994). We determined:
If one rents or leases sleeping accommodations for a period of ninety (or more)
consecutive days, such would not be considered transient, would not be subject
to the accommodations tax, and could be governed by the Residential Landlord
and Tenant Act.

If one is not considered transient and thus is governed by the Residential
Landlord and Tenant Act, it would appear that the Lodging Establishment Act
would not then apply, as such provision of lodging would not seem to be on a
transient basis. To determine which act would apply to a given situation, it

would appear to be necessary to determine whether an individual is a transient,
i.e., whether that individual has entered into a rental or lease arrangement for
ninety consecutive days with the particular establishment. Such determination
will have to be made on a case-by-case basis.
Id.

Lieutenant Scan M. Bailey
Page 3

November 1 7, 2023

In keeping with these opinions, we continue to believe a person occupying a hotel, motel, or other
lodging accommodation for less than ninety days would fall under the provisions of the LEA.

However, if a person occupies such premises for ninety consecutive days or more, that individual
would not be considered a transient and therefore, the provisions of the SCRLTA could apply.
Nonetheless, whether the SCRLTA applies depends upon whether a landlord tenant relationship
has been established by contract, cither express or implied. We reiterate that this determination
must be made on a casc-by-casc basis.
Conclusion

The Lodging Establishment Act regulates the terms upon which innkeepers may provide lodging
to their customers.

S.C. Code Ann. §§ 45-2-10 et seq.

Landlord Tenant Act governs the rights and

Whereas the South Carolina Residential

obligations of landlords and tenants.

The

determination of which of these acts applies in a given situation must be on a case-by-case basis.
However, section 27-40-120(4) states the SCRLTA does not apply to “transient occupancy in a

hotel, motel, or other accommodations subject to the sales tax on accommodations as provided by
§

12-36-920.”

S.C. Code Ann. § 27-40-120(4).

Transients are subject to sales tax on

accommodations unless the accommodations are provided to them for a period of ninety
consecutive days. S.C. Code Ann. § 12-36-920.

As such, a person occupying a hotel, motel, or

other lodging accommodations for a period of less than ninety consecutive days, is excluded from
the SCRLTA and therefore, would fall under the LEA. However, a person occupying such facilities
longer than ninety consecutive days may fall within the SCRL'fA, but for the provisions of the
SCRLTA to apply, a landlord tenant relationship must be established through an express or implied

contract between the parties.

Sincerely,

Cydney Milling
Assistant Attorney General

REVIEWED AND APPROVED BY:

S Robert D. Cook
Solicitor General