Special thanks to Jeff Bannister of Serve-One Inc. Process Serving in Greenville, SC, who contributes this guest post to the Construction Payment Blog. Jeff Bannister is the owner of Serve-One Inc. Processing Serving. Serve One Attorney Services is the largest process serving company in SC. Jeff is a Desert Storm Veteran and former State Trooper who started serving legal process in 1987. He is not an attorney.
When it comes to civil liability a Mechanics Lien is in my opinion the most dangerous paper to serve. If it is not filed and served properly, the process server could be held responsible. That’s why it’s critical to learn to navigate through the myths and facts of how to properly serve these liens.
Myth #1 – The lien’s 90-day limit can be extended by filing with the Sheriff’s Department
This time limit, or statute, starts the last day work was done or material was supplied to the property in question. It is true that South Carolina’s rules of civil procedure, Rule 3 paragraph (b), states a statute can be tolled on a SUMMONS AND COMPLAINT. But Mechanics’ liens are not included in this rule.
Myth #2 – If the owner of the property can’t be found, an affidavit for non-service can be filed
When the owner or person in possession of the property cannot be found, S.C. Code Ann Section 29-5-90 allows the lien to be filed with an affidavit of non-service by a SHERIFF or his DEPUTY. But it’s important to note that this section does not provide for an affidavit of non-service from a private process server.
I have asked attorneys for their opinion about this. They’ve told me they would try an affidavit of non-service if there were no other choice — but that they wouldn’t want to be the first to present this to the court.
I have always kept track of the date, and if the 90 days were over on a weekend, I would go to the Sheriff’s Department civil division with a copy of the law in my hand and politely explain the situation. I have never been turned down when I ask for a rush check of the property and affidavit of non-service. This affidavit of non-service MUST be filed with the lien before the 90 days. (It does seem unusual that if the lien was served properly, the statute does not require the affidavit of service to be filed with the lien.)
Myth #3 – If the owner or registered agent cannot be found it can be posted on the front or main entrance to the property using a nail or securing it with tape
I have done a great deal of research on this, and I have not found any “Nail and Mail” sections concerning mechanics liens in South Carolina. S.C. Code Ann. Section 29-5-90 says a mechanic’s lien will be dissolved within 90 days unless it is served upon the owner OR if the owner cannot be found a person in possession of the property.
This would be a common practice if you were serving an apartment complex that is under construction and the owner is an out-of-state corporation. The lead project manager would probably be the most appropriate person in this case. If it was a house or rental property the person living there would be appropriate.
The Mechanics lien is a very unusual paper when compared to other civil processes.
Often, the client will ask that you file the lien with the clerk of court or RMC office. This should be done as soon as possible because the validity and value of a lien can be effected by its timeliness. To make research easier for the attorney, record the book and page number and the time the lien is filed.
If the lien isn’t properly handled ‑‑ either by the attorney or the server — the plaintiff may have to pay all associated fees concerning the defense of the lien. So, it is imperative everything be handled according to the details of the law.