H*4949 Session 112 (1997-1998)
H*4949(Rat #0488, Act #0348 of 1998) General Bill, By House Judiciary
Similar(S 1180, H 4830)
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 UNDER CERTAIN
CONDITIONS TO ENTER ADJOINING REAL PROPERTY TO EFFECT REPAIRS, MAINTENANCE, OR
IMPROVEMENTS ON OTHER PROPERTY 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, TO AUTHORIZE
A BOND OR OTHER SECURITY, AND TO PROVIDE IMMUNITY FROM LIABILITY.-AMENDED
TITLE
04/02/98 House Introduced, read first time, placed on calendar
without reference HJ-5
04/07/98 House Amended HJ-413
04/07/98 House Read second time HJ-413
04/08/98 House Read third time and sent to Senate HJ-30
04/14/98 Senate Introduced and read first time SJ-9
04/14/98 Senate Referred to Committee on Judiciary SJ-9
05/13/98 Senate Committee report: Favorable with amendment
Judiciary SJ-23
05/19/98 Senate Amended SJ-48
05/19/98 Senate Read second time SJ-48
05/19/98 Senate Ordered to third reading with notice of
amendments SJ-48
05/27/98 Senate Amended SJ-101
05/27/98 Senate Read third time and returned to House with
amendments SJ-101
06/02/98 House Concurred in Senate amendment and enrolled HJ-65
06/04/98 Ratified R 488
06/09/98 Signed By Governor
06/17/98 Effective date 06/09/98
06/17/98 Copies available
06/17/98 Act No. 348
(A348, R488, H4949)
AN ACT 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 UNDER CERTAIN
CONDITIONS TO ENTER ADJOINING REAL PROPERTY TO
EFFECT REPAIRS, MAINTENANCE, OR IMPROVEMENTS ON
OTHER PROPERTY UPON A SHOWING OF NECESSITY AND
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, TO SPECIFY LIMITATIONS ON THE SCOPE AND
DURATION OF A COURT-ORDERED LICENSE, TO AUTHORIZE
A BOND OR OTHER SECURITY, AND TO PROVIDE IMMUNITY
FROM LIABILITY.
Be it enacted by the General Assembly of the State of South Carolina:
License to enter adjoining property to make repairs
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 adjoining property 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 for the purpose of performing the
improvements, repairs, or maintenance. For the purpose of this section
improvement, repair, or maintenance does not include new construction
on a site without a preexisting structure.
The property owner over whose property a license is sought to be
granted by the court shall be joined as a party respondent to the action
seeking a license and the case shall be bound by the South Carolina rules
of civil procedure and shall be heard by the court sitting in equity without
a jury.
(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 considered 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 and provides notice of
the respective rights of parties under this section 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;
(2) the grant of license is not an unreasonable 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) the amount of compensation to be paid to the property owner
over whose property the license is granted;
(5) that the owner or lessee seeking the license must provide to any
person performing improvements, repairs, or maintenance a copy of the
court order setting forth the specific conditions of the license; and
(6) any other terms and conditions the court considers appropriate
to minimize disruption to the adjoining owner's or lessee's use and
enjoyment of the property over which the license is granted.
(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.
(I) The right of entry provided for in this section applies only to
portions of the adjoining property including, but not limited to, driveways,
patios, sidewalks, and other unimproved land. It does not authorize entry
into any buildings on the adjoining property."
Time effective
SECTION 2. This act takes effect upon approval by the Governor.
Approved the 9th day of June, 1998. |