H 3874 Session 112 (1997-1998)
H 3874 General Bill, By Campsen, Woodrum and W.J. Young
Similar(H 3794)
A BILL TO AMEND SECTION 16-11-620, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA,
1976, RELATING TO CRIMINAL PENALTIES FOR TRESPASS AGAINST REAL PROPERTY, AND
SECTION 15-67-610, RELATING TO CIVIL REMEDIES FOR TRESPASS AGAINST REAL
PROPERTY, SO AS TO EXEMPT THE OWNER OR LESSEE OF CERTAIN LAND FROM CRIMINAL
AND CIVIL LIABILITY WHEN HIS ENTRY ONTO ANOTHER'S LAND IS NECESSARY FOR
IMPROVEMENTS, REPAIRS, OR MAINTENANCE, UNDER CERTAIN CIRCUMSTANCES.
04/09/97 House Introduced and read first time HJ-45
04/09/97 House Referred to Committee on Judiciary HJ-45
05/14/97 House Committee report: Favorable with amendment
Judiciary HJ-104
05/20/97 House Requests for debate-Rep(s). Sheheen, F. Smith,
Scott, Neal, Cobb-Hunter, Moody-Lawrence, J.
Smith, Campsen, Harrell, Easterday, Limehouse
Loftis, Hamilton, Leach, Law, R. Smith & Young HJ-51
05/28/97 House Amended HJ-71
05/28/97 House Continued HJ-79
05/28/97 House Roll call Yeas-64 Nays-35 HJ-79
Indicates Matter Stricken
Indicates New Matter
PLEASE DO NOT REMOVE THIS COPY FROM BILL JACKET
AMENDED--NOT PRINTED IN THE HOUSE
Amendment No. 1--P:\AMEND\BBM\9168DW.97
Amendment No. 3--P:\AMEND\KGH\15281AC.97
Amendment No. 4--L:\PRINTING\DAILY\AMEND\3874H.4
May 28, 1997
H. 3874
Introduced by Reps. Campsen, Young and
Woodrum
S. Printed 5/14/97--H.
Read the first time April 9, 1997.
THE COMMITTEE ON JUDICIARY
To whom was referred a Bill (H. 3874), to amend Section
16-11-620, as amended, Code of Laws of South Carolina, 1976,
relating to criminal penalties for trespass against real property, etc.,
respectfully
REPORT:
That they have duly and carefully considered the same, and
recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after enacting
words and inserting:
/SECTION 1. The 1976 Code is amended by adding:
"Section 15-67-270. (A) When an owner or lessee of real property
seeks to improve, repair, or maintain his property, and the property
is so situated that the improvements, repairs, or maintenance cannot
be accomplished without entering the premises of an adjoining
property owner, and permission to enter the adjoining property has
been denied, or unreasonable conditions have been placed upon the
entry, the owner or lessee seeking to make the improvements, repairs,
or maintenance may petition the circuit court for a license to enter the
adjoining property.
(B) The petition may not be filed until after a good faith effort to
obtain permission to enter the adjoining property has been made. A
good faith effort to obtain permission for entry is deemed to have
been made if the request describes the nature and manner of the
requested improvements, repairs, or maintenance, solicits specific
dates for entry, and
(1) the petitioner can present evidence of an actual request and
denial of entry, or the imposition of unreasonable conditions upon
entry; or
(2) if the petitioner requests entry in writing by certified mail,
return receipt requested, to the owner of record according to the tax
records for the county in which the adjoining property is located, a
period of forty-five days has expired since the written requests for
entry was made, and the adjoining property owner has not responded
to the request in writing. The court may waive the forty-five day
period if service upon the owner of record has been accomplished and
if the court finds the petitioner's property will suffer irreparable
waste from imposition of the forty-five day period.
(C) The petition must be accompanied by affidavits or other
evidence setting forth the circumstances which make the entry
necessary, the dates the entry is desired, and a description of the
improvements, repairs, or maintenance which will be accomplished.
(D) After an evidentiary hearing based upon a motion for
immediate relief, the petition for license may be granted if the court
finds that the grant of the license will not be an unreasonable
infringement upon the adjoining property, and that the license is
reasonably necessary for the improvement or preservation of the
petitioner's property. If the court grants the license, it shall specify:
(1) the nature of the improvements, repairs, or maintenance to
be accomplished;
(2) the manner in which the improvements, repairs, or
maintenance will be accomplished;
(3) the dates upon which the license begins and ends; and
(4) any other terms and conditions the court deems appropriate
to minimize disruption to the adjoining owner or lessee's use and
enjoyment of his property.
(E) Once the authorized improvements, repairs, or maintenance are
commenced, they shall proceed expeditiously. The license shall
terminate upon the earlier of the completion of the improvements,
repairs, or maintenance set forth in the license, or the expiration of
the license. The licensee shall in all respects restore the adjoining
land to its condition prior to entry, and is liable for actual damages
occurring as a result of the entry including, but not limited to,
physical damage to the adjoining property and loss of revenue.
(F) The court may require that an appropriate bond or other
security be posted by the licensee, or that the licensee provide
adequate liability and workers' compensation insurance to indemnify
the adjoining property owner and lessee against claims arising from
the work authorized by the license."
SECTION 2. This act takes effect upon approval by the
governor./
Amend title to read:
/TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA,
1976, BY ADDING SECTION 15-67-270 SO AS TO PROVIDE
FOR A COURT-ORDERED LICENSE TO ENTER REAL
PROPERTY TO EFFECT REPAIRS, MAINTENANCE, OR
IMPROVEMENTS UPON A SHOWING OF REASONABLENESS,
TO REQUIRE A GOOD FAITH EFFORT TO OBTAIN THE
LANDOWNER'S CONSENT BEFORE PETITIONING THE
COURT FOR LICENSE TO ENTER, TO DEFINE "GOOD FAITH
EFFORT", AND TO SPECIFY LIMITATIONS ON THE SCOPE
AND DURATION OF A COURT-ORDERED LICENSE./
JAMES H. HARRISON, for Committee.
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA,
1976, BY ADDING SECTION 15-67-270 SO AS TO PROVIDE
FOR A COURT-ORDERED LICENSE TO ENTER REAL
PROPERTY TO EFFECT REPAIRS, MAINTENANCE, OR
IMPROVEMENTS UPON A SHOWING OF REASONABLENESS,
TO REQUIRE A GOOD FAITH EFFORT TO OBTAIN THE
LANDOWNER'S CONSENT BEFORE PETITIONING THE
COURT FOR LICENSE TO ENTER, TO DEFINE "GOOD FAITH
EFFORT", AND TO SPECIFY LIMITATIONS ON THE SCOPE
AND DURATION OF A COURT-ORDERED LICENSE.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 15-67-270. (A) When an owner or lessee of real property
seeks to improve, repair, or maintain his property, and the property
is so situated that it is impossible to perform the improvements,
repairs, or maintenance without entering the premises of an adjoining
property owner, and permission to enter the adjoining property has
been denied, or unreasonable conditions have been placed upon the
entry, the owner or lessee seeking to make the improvements, repairs,
or maintenance may petition the circuit court for a license to enter the
adjoining property.
(B) The petition may not be filed until after a good faith effort to
obtain permission to enter the adjoining property has been made. A
good faith effort to obtain permission for entry is deemed to have
been made if the request describes the nature and manner of the
requested improvements, repairs, or maintenance, solicits specific
dates for entry, and
(1) the petitioner can present evidence of an actual request and
denial of entry, or the imposition of unreasonable conditions upon
entry; or
(2) if the petitioner requests entry in writing by certified mail,
return receipt requested, to the owner of record according to the tax
records for the county in which the adjoining property is located, a
period of forty-five days has expired since the written requests for
entry was made, and the adjoining property owner has not responded
to the request in writing. The court may waive the forty-five day
period if service upon the owner of record has been accomplished and
if the court finds the petitioner's property will suffer irreparable
waste from imposition of the forty-five day period.
(C) The petition must be accompanied by affidavits or other
evidence setting forth the circumstances which make the entry
necessary, the dates the entry is desired, and a description of the
improvements, repairs, or maintenance which will be accomplished.
(D) After an evidentiary hearing based upon a motion for
immediate relief, the license may be granted if the court finds that:
(1) the entry upon the adjoining property does not irreparably
or unreasonably damage the adjoining property, including any
improvements, appurtenances, fixtures, flora, or landscaping thereon;
(2) the grant of license is only a minimal encroachment or
burden upon the adjoining property; and
(3) the license is reasonably necessary for the improvement or
preservation of the petitioner's property.
(E) If the court grants the license, it shall specify:
(1) the nature of the improvements, repairs, or maintenance to
be accomplished;
(2) the manner in which the improvements, repairs, or
maintenance will be accomplished;
(3) the dates upon which the license begins and ends;
(4) any other terms and conditions the court deems appropriate
to minimize disruption to the adjoining owner or lessee's use and
enjoyment of his property; and
(5) that the licensee pay the reasonable attorney's fees and court
costs incurred by the adjoining property owner in responding to a
petition brought under this section.
(F) Once the authorized improvements, repairs, or maintenance are
commenced, they shall proceed expeditiously. The license shall
terminate upon the earlier of the completion of the improvements,
repairs, or maintenance set forth in the license, or the expiration of
the license. The licensee shall in all respects restore the adjoining
land to its condition prior to entry, and is liable for actual damages
occurring as a result of the entry including, but not limited to,
physical damage to the adjoining property and loss of revenue.
(G) The court may require that an appropriate bond or other
security be posted by the licensee and shall require the licensee to
provide adequate liability and workers' compensation insurance to
indemnify the adjoining property owner and lessee against claims
arising from the work authorized by the license.
(H) Except in the case of wilful, wanton, or reckless misconduct,
the adjoining property owner or lessee upon whose property entry is
authorized under this section is immune from liability from all suits,
claims, and causes of action arising from the entry and work
authorized by the license."
SECTION 2. This bill applies to a right of entry to only
unimproved portion of real estate.
SECTION 3. This act takes effect upon approval by the governor.
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