Construction Law

   After filing a mechanic?s lien, a party has six months to commence a suit to enforce the lien. See S.C. Code Ann. § 29-5-120. Failure to enforce a lien within the six month statutory period deprives the party of the remedies available under the mechanic?s lien statutes. When faced with a mechanic?s lien, the property owner can post a bond, which discharges the lien and allows the owner to convey the property free and clear of the lien despite the existence of an enforcement action against the property. See See S.C. Code Ann. § 29-5-110.

   In Cohen?s Drywall Co. Inc. v. Sea Spray Homes, LLC et al., (July 23, 2007), the South Carolina Supreme Court addressed the question of whether Cohen timely filed an action to enforce a mechanic?s lien. The company filed the lien, timely commenced an action for enforcement, and identified the home as the subject of the enforcement action; however, subsequent to filing the lien, the company discovered that the property owners had posted a bond. In response, the company amended its Complaint to identify the bond, instead of the lien, as the subject of the enforcement action. The trial court granted the property owners? Motion to Dismiss, reasoning that Cohen?s Drywall failed to commence an action for enforcement within the six month statutory time period since it did not file its Amended Complaint identifying the bond as the subject of the enforcement action until after six months from the date the company filed the lien.

   The Supreme Court disagreed and ruled that the mechanic?s lien statutes do not require a party to bring an enforcement action against a bond. Since there is no such requirement, Cohen?s Drywall did not have to amend its Complaint to identify the bond as the subject of the enforcement action. The Supreme Court?s ruling was based on the simple fact that none of the mechanic?s lien statutes require a party to substitute a bond as the subject of an enforcement action. An enforcement action naming the property as the subject of the action is sufficient to secure foreclosure on any subsequent bond.

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