2017 South Carolina Code of Laws
Title 29 - Mortgages and Other Liens
CHAPTER 5 - MECHANICS' LIENS
Section 29-5-440. Suit on payment bond.
Every person who has furnished labor, material, or rental equipment to a bonded contractor or its subcontractors in the prosecution of work provided for in any contract for construction, and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material or rental equipment was furnished or supplied by him for which such claim is made, shall have the right to sue on the payment bond for the amount, or the balance thereof, unpaid at the time of the institution of such suit and to prosecute such action to final execution and judgment for the sum or sums justly due him.
A remote claimant shall have a right of action on the payment bond only upon giving written notice by certified or registered mail to the bonded contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material or rental equipment upon which such claim is made. However, in no event shall the aggregate amount of any claim against such payment bond by a remote claimant exceed the amount due by the bonded contractor to the person to whom the remote claimant has supplied labor, materials, rental equipment, or services, unless the remote claimant has provided notice of furnishing labor, materials, or rental equipment to the bonded contractor. Such written notice to the bonded contractor must generally conform to the requirements of Section 29-5-20(B) and sent by certified or registered mail to the bonded contractor at any place the bonded contractor maintains a permanent office for the conduct of its business, or at the current address as shown on the records of the Department of Labor, Licensing and Regulation. After receiving the notice of furnishing labor, materials, or rental equipment, no payment by the bonded contractor shall lessen the amount recoverable by the remote claimant. However, in no event shall the aggregate amount of claims on the payment bond exceed the penal sum of the bond.
No suit under this section shall be commenced after the expiration of one year after the last date of furnishing or providing labor, services, materials, or rental equipment.
For purposes of this section, "bonded contractor" means a contractor or subcontractor furnishing a payment bond, and "remote claimant" means a person having a direct contractual relationship with a subcontractor or supplier of a bonded contractor, but no contractual relationship expressed or implied with the bonded contractor. Any payment bond surety for the bonded contractor must have the same rights and defenses of the bonded contractor as provided in this section.
This section shall apply to any payment bond, whether statutory, public, common law, or private in nature, that is issued in connection with a construction project or other improvements to real property within South Carolina when such payment bonds are not otherwise required or governed by any other applicable section of the South Carolina Code of Laws.
For the purposes of this section:
(1) "Statutory bonds" or "public bonds" means bonds that are either:
(a) provided because required by statute and in accordance with the minimum guidelines set forth in this section; or
(b) contain either express or implied reference to the provisions of this section.
(2) "Common law bonds" or "private bonds" means bonds that are either:
(a) not required by statute, such as a bond voluntarily provided to meet a contractual agreement between parties; or
(b) required by statute but that specifically deviates from the statutory requirements to provide broader protection.
HISTORY: 2000 Act No. 240, Section 1; 2014 Act No. 264 (S.1026), Section 1, eff June 6, 2014.
Effect of Amendment
2014 Act No. 264, Section 1, in the second paragraph, substituted "must generally conform to the requirements of Section 29-5-20(B) and sent by certified or registered mail" for "shall be personally served or sent by fax or sent by electronic mail or sent by registered or certified mail, postage prepaid,"; in the fourth paragraph, inserted "or supplier" in the first sentence, and added the second sentence, relating to rights and defenses; and added the paragraphs following the fourth paragraph.
