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An action to enforce a mechanic's lien is commenced upon naming the subject real property or the substituted bond
South Carolina law provides that a suit for the enforcement of a mechanic's lien must be commenced within 6 months of the time that a person ceases providing labor or materials in connection with a building or structure. S.C. Code Ann. 25-5-120. Additionally, "compliance with any numbers of bond procedures allows a property owner to release his property from the mechanic's lien." S.C. Code Ann. 29-5-110.
The South Carolina Supreme Court recently interpreted these two provisions of the South Carolina Code in conjunction with one another. In Cohens Drywall Co., Inc. v. Sea Spray Homes, LLC, Robin C. Wahler, Susan C. Wahler, and Plantation Federal Bank, Opinion No. 26360 (July 23, 2007), a contractor perfected a mechanic's lien on work performed and materials supplied to property owner. Thereafter, the property owner posted a cash bond in compliance with S.C. Code Ann. 29-5-110 which released the subject property from the mechanic's lien. Contractor, not knowing that property owner posted the cash bond, commenced an enforcement action within the 6 month time frame set in S.C. Code Ann. 25-5-120, naming the real property as subject of the enforcement action. After learning of the cash bond, contractor amended its complaint naming the cash bond as subject to the action. This amendment was after the applicable 6 month time period had elapsed. The Court held that "neither statute requires a lien holder to name a substituted cash bond or other undertaking as the subject of the enforcement action." Cohens Drywall Co., Inc. v. Sea Spray Homes, LLC, Robin C. Wahler, Susan C. Wahler, and Plantation Federal Bank, Opinion No. 26360 (July 23, 2007).
While it is always best to name all possible subject to an enforcement action, the real property and any substituted bonds, the current law of South Carolina is that it is not improper for the contractor to name the real property instead of the substituted bond as the subject of the enforcement action as long as contractor filed the action within the applicable 6 month time period.
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