Vol. 6, No. 2, Pg. 32. MECHANIC'S LIEN LAWS IN SOUTH CAROLINA.

• Author: By J. Kershaw Spong

South Carolina Lawyer

1994.

Vol. 6, No. 2, Pg. 32.

MECHANIC'S LIEN LAWS IN SOUTH CAROLINA

32MECHANIC'S LIEN LAWS IN SOUTH CAROLINABy J. Kershaw SpongThis article is intended to give a brief overview of the mechanic's lien law, call attention to significant amendments to the mechanic's lien statute, and outline helpful information clients should obtain to ensure timely and efficient filing of a mechanic's lien.

Nature of Mechanic's hens

One who supplies materials or performs work for the improvement of real property has the right to charge the property for the materials or labor furnished. S.C. Code Ann. § 29-5-10 et seq. Thus, the contractor or supplier may record a lien against the property for the value of the materials and labor and be paid out of a forced sale of the property. The term "mechanic's lien" applies to the category of debt in question and is applied to contractors, workmen and suppliers who are working on or supplying materials for improvements on real estate.

formal Requirements

Within 90 days after the last work was done or the last materials were delivered, the contractor or supplier must serve upon the owner of the property and record, in the office of the Clerk of Court for the county where the property is located, a statement setting forth the nature of the lien. This serves as public notice that the property is subject to the lien.

The statement must contain a just and true account of the amount due, with all credits given, a description of the real property to be liened, and the name of the property owner. The lien must be subscribed and sworn to by the person claiming the lien or by someone on his or her behalf.

In order for the notice to be effective, the property must be adequately described. It is important to have a good description of the real estate where materials are being delivered, in case it should become necessary to prepare a written description for filing a lien. Also, the owner of record must be ascertained, because the owner or--in the event the owner cannot be found--the person in possession of the property must be personally served and the lien filed under his or her name. If the owner or the person in possession cannot be found after diligent search, the lien may be preserved by filing the statement with an affidavit to this effect from the sheriff or a deputy .

Notice of Commencement" of Projects

Significant amendments to South Carolina's mechanic's lien statute were enacted in 1992. See S.C. Code Ann. §§ 29-5-20(B), -23 and -60(b). The amendments address a perceived inequity in the mechanic's lien statute. Under the old law, the lien of a sub-subcontractor or a supplier to a subcontractor (remote provider) attached to the money owed to the general contractor and was collectible even though a general contractor had already paid his own (first tier) subcontractor for the work or materials in question.

If, for example, the general contractor paid the roofing subcontractor in full but the roofing subcontractor absconded without paying its supplier, the supplier could file a lien that would be fully funded out of retain-ages or other payments owed to the prime...