South Carolina passed no ADU preemption — and Charleston requires owners to certify no covenant bars the unit
South Carolina passed no ADU preemption — and Charleston requires owners to certify no covenant bars the unit
2026-09-19 · South Carolina · Compliance
Many states that preempted local ADU rules wrote an express savings clause preserving private covenants. South Carolina wrote neither — because it enacted no ADU legislation at all.
That leaves the default in place: a local zoning permission is not a covenant defence, and covenants continue to bind independently of zoning.
What Charleston requires
The City of Charleston's accessory dwelling unit requirements go further than silence. They state that the lot "must not be encumbered by covenants that prohibit the construction or use of an ADU," and require a statement signed by the owner certifying that no such covenants exist.1
The city also requires execution and recording of a Declaration of Covenants and Restrictions before completion — an instrument that itself restricts short-term rental and subleasing of the unit.2
The Town of Mount Pleasant publishes parallel ADU requirements.3
The pattern this repeats
This is the second South Carolina jurisdiction this year to make a private covenant a condition of a public permission. Hilton Head Island's amended short-term rental ordinance requires an owner to supply a letter from the association confirming short-term rental is permitted.
The mechanisms differ — Charleston takes the owner's certification, Hilton Head requires the association's letter — but the direction is the same: the municipality declines to issue a permission the covenants would not allow.
The bills that died, and why none of them would have changed this
Four housing-supply measures were filed in the 2025-2026 term. A full-text check of each returns no occurrence of "covenant," "homeowners association," "restrictive" or "accessory dwelling" in the operative sense:
- H. 3469, the Accessory Dwelling Unit Affordable Housing Incentive Act, introduced January 14, 2025 — a property-tax exemption conditioned on owner and tenant income limits, compliance with all local zoning ordinances, a ten-year affordability period and acceptance of Section 8. It does not reference covenants.4
- S. 4, Local Government Planning, prefiled December 11, 2024 — would have reduced administrative and permitting costs and barriers to housing construction and allowed third-party inspectors.
- H. 4293 and S. 530, companion zoning bills — would have added a section voiding permits where a zoning official determines the use is not permitted.
- S. 227, Local planning — the only one with real 2026 movement: a favourable committee report with amendment on March 12, 2026, amended on the Senate floor April 29, a scrivener's error corrected May 6, and still residing in the Senate at adjournment.
All four died. And critically, none of them addressed covenants in either direction. Even passage would have left an association's authority over accessory dwelling units exactly where it is.
Why "no statute" is the answer, not a gap
The question owners ask is whether a city's permission to build an ADU overrides a covenant that forbids one. In South Carolina it does not, and the reason is structural rather than accidental.
Zoning is a public restriction on what a jurisdiction will permit. A covenant is a private agreement running with the land, enforceable by the association or by other owners. They operate on different planes, and a permit is not permission from the parties to the covenant. Only a legislature can subordinate one to the other — which is what an express preemption statute does — and South Carolina has not.
South Carolina's one covenant-override statute, Section 27-1-60, concerns display of the United States flag. Title 27, Chapter 1 contains no section addressing accessory dwellings, solar energy systems or electric-vehicle charging.
What decides an ADU request in a covenanted community
- Use restrictions. A single-family-residence restriction, or a limit on the number of dwellings per lot, is the usual obstacle, and its meaning is a question of construction.
- Architectural approval. Where the declaration requires prior approval for construction, it applies to an accessory unit as to any other structure.
- Rental restrictions. Whether the unit may be occupied by a tenant is governed by the leasing provisions, which are frequently separate from the use restriction.
- The recording gate. A restriction never recorded under Section 27-30-130 is not enforceable, and rules and regulations must be recorded by January tenth of the year following adoption to remain enforceable.
- Construction against the restriction. Where a restriction is capable of two reasonable readings, South Carolina resolves the ambiguity in favour of free use — the canon applied this year in Hoffman v. Saad Holdings.
Greenville adopted missing-middle zoning changes in 2026, which operate on municipal zoning only and have no covenant effect.
See accessory dwelling units and modifications in South Carolina.
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