Construction Law - Mechanic's Lien
Mechanic's Liens: is it too Late?
Joshua A. Bennett
January 2, 2013
One thing is evident when dealing with mechanic's liens: timing is everything. If certain deadlines are not met, a contractor or material supplier will not be able to take advantage of placing a lien on the property. Thus, questions often arise regarding the initial perfection of a mechanic's lien.
The right to a lien arises inchoate; i.e., when the labor is performed or material is furnished, the right exists but the lien has not been perfected. When the person claiming the lien was employed by someone other than the owner, such as a contractor, he must notify the owner of the furnishing of labor or material in order for the lien to attach to the property.
In order to perfect and enforce a mechanic's lien, the person asserting the lien must serve the proper documents "within ninety days after he ceases to labor on or furnish labor or materials for such building or structure." S.C. Code Ann. sec. 29-5-90. If this ninety day rule is not satisfied, then the lien against the property is dissolved.
However, some may wonder what kind of labor or furnishing of materials counts in order to start the clock on the ninety day rule. Fortunately for the ones asserting the lien, the rule is pretty flexible.
The South Carolina Supreme Court has stated the following on this issue:
Where a claimant, after a contract is substantially completed, does additional work or furnishes additional material which is necessary for the proper performance of his contract, and which is done in good faith at the request of the owner or for the purpose of fully completing the contract, and not merely as a gratuity or act of friendly accommodation, the period for filing the lien will run from the doing of such work or the furnishing of such materials, irrespective of the value thereof. The deadline to serve and record a mechanic's lien begins running from the date the last material was furnished or work performed, regardless of whether such material or work is insignificant and regardless of whether the final work is delayed, provided the reason for the delay is not to improperly extend the period for perfecting the lien.
Butler Contracting, Inc. v. Court St., LLC, 369 S.C. 121, 130-31, 631 S.E.2d 252, 257 (2006) (internal citations omitted).
Thus, because work such as that done for warranty purposes counts in this context, you may have mechanic's lien rights you thought were long gone. However, it is important to note that the initial ninety day deadline is just one of many statutory deadlines encountered when dealing with mechanic's liens.
SOURCE: www.lexology.com