S 1180 Session 112 (1997-1998)
S 1180 General Bill, By McConnell and Passailaigue
Similar(H 4830, H 4949)
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.
04/08/98 Senate Introduced and read first time SJ-7
04/08/98 Senate Referred to Committee on Judiciary SJ-7
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.
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 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.
The property owner over whose property a license is sought to be
granted by the court must be joined as a party respondent to the
action seeking a license and the case is bound by the South Carolina
Rules of Civil Procedure and must 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 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 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) that the owner or lessee must provide a copy of the court
order setting forth the specific conditions of the license granted to
any person performing improvements, repairs, or maintenance; and
(5) any other terms and conditions the court considers
appropriate to minimize disruption to the adjoining owner or lessee's
use and enjoyment of his property.
(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."
SECTION 2. This act takes effect upon approval by the Governor.
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