SOUTH CAROLINA LIEN AND BOND CLAIMS

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1 SOUTH CAROLINA LIEN AND BOND CLAIMS William ( Trey ) W. Watkins, Jr. 145 King Street, Suite 300 Charleston, SC

2 Introduction to Surety 3 Main differences between Insurance and Bonds 1) Parties to the agreement 2) Loss Expectations 3) Limits v. Capacity Page 2

3 Introduction to Surety Surety Companies Today Defined Historical perspective Underwriting Page 3

4 Surety Bond Underwriting The Process Defined The Players The 3 C s of Company Underwriting Character Capacity Capital The 4 th C of Project Underwriting Page 4

5 Basic Contract Surety Bonds Bid Bond Performance Bond Payment Bond Owner assurance if contractor can obtain bond Page 5

6 Liens v. Bonds No Lien Rights on Public Projects Recover under bond and lien on private Page 6

7 Partial Text of Miller Act Before any contract, exceeding $100,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds, which shall become binding upon the award of the contract to such person, who is hereinafter designated as contractor :... B. A payment bond with a surety or sureties satisfactory to such officer for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person.... Page 7

8 S.C. Miller Act Little Miller Act When a construction contract is awarded pursuant to Section , the following bonds or security shall be delivered to the using agency and shall become binding on the parties upon the execution of the contract: (i) a performance bond satisfactory to the State, executed by a surety company meeting the criteria established by the board in regulations, or otherwise secured in a manner satisfactory to the State, in an amount equal to one hundred percent of the price specified in the contract; (ii) a payment bond satisfactory to the State, executed by a surety company meeting the criteria established by the board in regulations, or otherwise secured in a manner satisfactory to the State, for the protection of all persons supplying labor and material to the contractor or its subcontractors for the performance of the work specified in the contract. The bond shall be in an amount equal to one hundred percent of the contract price. (iii) in the case of a construction contract valued at fifty thousand dollars or less, the using agency may waive the requirements of (i) and (ii) above, provided that the using agency has protected the State. Page 8

9 The Miller Acts Theory Triggers Fed. - $100,000 S.C. - $50,000 Federal or state ownership, not just funding What it guarantees Performance Payment Federal Miller Act v. Little Miller Act Page 9

10 Miller Acts - Who is covered? Only those who furnish labor or materials directly to a bonded contractor or directly to a subcontractor of a bonded contractor. Owner Bonded GC light green are key players green entities are protected Sub. Supplier Red are not protected Sub Supplier Supplier Sub Supplier Supplier Page 10

11 Miller Acts Work Covered? Labor and Materials Good faith intent to be used on job Fair rental value of leased equipment Directed changes (including oral) All sum justly due under the contract No attorney fees Page 11

12 Miller Acts Notice Requirements? 90 days for remote claimants Anyone who does not have a direct relationship with the bonded contractor and is covered by the Miller Acts Owner Bonded GC Anyone in green Sub. Supplier Sub Supplier Supplier Sub Supplier Supplier Page 12

13 Miller Acts Details of the Notice Requirements? Written Notice actual notice may not be enough Served within 90 days Served on General Contractor Registered mail, or personally Must demand payment Page 13

14 Miller Acts Statute of Limitations? 1 year for anyone protected by the Miller Acts i.e. in green Owner Bonded GC Sub. Supplier Sub Supplier Supplier Sub Supplier Supplier Page 14

15 Contractor s Notice of Project Commencement and Location Notice File with the clerk of court or register of deeds in the county or counties where the real property is located, Pay filing fee, Post copy at the project, Complete all within 15 days of commencement of work. If filed and posted claim by remote claimant, then the claim is limited to the dollar amount that the bonded contractor owes subcontractor regardless of what is owed to the remote claimant. Unless... 15

16 Notice of Furnishing Labor or Materials Provide via certified or registered mail when first supplying labor, service, materials, or rental equipment to a Project. Statute allows fax or for Bond Claim If notice is given, then the only limit on a claims is the penal sum of the bond. See SC Code

17 Bond Claims Making a claim Must give timely and proper notice Documentation Demand in writing ( ) Communication with Surety Page 17

18 Bond Claims Keep the Surety Informed and Involved The key to receiving a benefit under the bond is: Proper Notice Continued communication Page 18

19 Claim Letter Example If protected by the Miller Acts this is example form to make a claim under a payment bond. Recommend filing out proof of claim and attaching to this form Page 19

20 Proof of Claim Standard proof of claim attachment for claim letter Surety will likely make you fill out their form. Page 20

21 Bond Claims Surety Options Deny claim and rely upon GC to resolve Independently investigate both positions Reimburse owner for damages Complete the work with an internal contractor Hire a replacement contractor Finance the defaulted contractor s completion of the work Page 21

22 Bond Claims Surety Defenses Surety stands in shoes of Principal Notice and procedural requirements Payment defense Material misstatements on application Right to contract balances Penal Sum of Bond Indemnity Corporate Personal Page 22

23 Bond Claims What about Private Jobs with Payment Bonds? Payment Bonds on Private Projects 2 Remedies File Mechanics Lien and Make a claim on the Bond Statutory Notice requirements are still applicable on Private projects for Payment Bonds If statutory scheme is not followed, then look to the bond for notice requirements. Page 23

24 Sureties Rights & Obligations Test - 1 Surety bonds are the same as insurance. FALSE Many distinctions between insurance and surety bonds exist. The main difference is that insurance is written to insure against expected losses. Surety bonds, however, are never written to cover expected losses. The surety s goal is to properly underwrite the risk and issue bonds for a principal whose assets are sufficient to cover a loss in the event of a default under the terms of the bond and underlying contract. Page 24

25 Sureties Rights & Obligations Test - 2 Can an unpaid subcontractor file a lien on a public project? NO It is against public policy to lien public property. Accordingly, most jurisdictions and public entities require surety bonds to protect parties that would otherwise have lien rights. On federal projects, the statute governing bonds is referred to as the Miller Act and State statutes requiring bonds are referred to as Little Miller Acts Page 25

26 Sureties Rights & Obligations Test - 3 A supplier to a supplier of the general contractor on a federal project is protected by the Miller Act. FALSE Only those with a direct relationship with the prime contractor are covered. This is true for South Carolina projects covered by the State s Little Miller Act. Remember the Chart? Page 26

27 Sureties Rights & Obligations Test - 3 Only Subcontractors and Suppliers to the GC or first tier subcontractor are protected by the Miller Acts Owner Bonded GC First Tier Sub. Supplier Second Tier Third Tier Sub Supplier Supplier Sub Supplier Supplier Page 27

28 Sureties Rights & Obligations Test - 4 A supplier to a subcontractor on a federal project is protected by the Miller Act. TRUE Claimants with a direct relationship to the prime contractor are protected by the Miller Act and by the State s Little Miller Act. Remember the chart? Page 28

29 Sureties Rights & Obligations Test - 4 Only First and Second Tier Subcontractors and Suppliers are protected by the Miller Acts Owner Bonded GC First Tier Sub. Supplier Second Tier Sub Supplier Supplier Third Tier Sub Supplier Supplier Page 29

30 Sureties Rights & Obligations Test - 5 Attorney s fees can be recovered under the Miller Act. FALSE Page 30

31 Sureties Rights & Obligations Test - 6 Notice of a claim to the prime contractor on a federal project must be made within 3 months of the last day the claimant performed labor or provided materials for a project. DEPENDS The statute requires written notice within 90 days. Under certain situations, 3 months is less than 90 days. Typically, however, the answer is False. If you rely on providing notice within 3 months, you may have a problem. Page 31

32 Sureties Rights & Obligations Test - 7 A suit against a payment bond on a federal project must be brought within how many days of last furnishing labor or materials? a. 6 months b. 180 days c. 1 year d. 3 years c. 1 year Although the notice period for 2 nd tier claimants is based on 90 days, the time for filing suit against a payment bond is 1 year for 1 st tier claimants, as well as 2 nd tier claimants. Page 32

33 Sureties Rights & Obligations Test - 8 In South Carolina, a Notice of Project Commencement and a Location Notice can only be used on a private, non-bonded project. NO Notices of Project Commencement and Location Notices can be used on private, non-bonded jobs, as well as state, local, and private jobs where a payment bond has been issued. If properly used, a Notice of Project Commencement and Location Notice can provide against double payment. Page 33

34 Sureties Rights & Obligations Test - 9 A Notice of Project Commencement and a Location Notice can be used at any time during a project. FALSE Under the terms of the statute, a Notice of Project Commencement must be filed and a Location Notice must be posted within 15 days of commencement of a project in order to be effective. Page 34

35 Sureties Rights & Obligations Test - 10 If a private project is bonded, subcontractors and suppliers cannot file a mechanic s lien, but must instead pursue their claims against the bond. FALSE Just because a private project is bonded, does not mean that a subcontractor or supplier cannot also file a mechanic s lien. Page 35

36 Key Points on Offensive Obtain a copy of the payment bond at the start of the project Know who the players are and whether you can recover under the bond Did you supply labor or materials to the GC or to a 1 st Tier Subcontractor? Page 36

37 Key Points on Offensive (cont.) Send out Notice of Furnishing Labor or Materials- make sure it: identifies the amount outstanding and the party you supplied labor or materials to and demands payment of the amount due Watch the clock. The 90 day notice period and the 1 year limitation are absolute. Page 37

38 Key Points on Defensive File a Notice of Project Commencement and post a Location Notice. Consider requiring large subcontractors to provide their own payment bonds. Be aware of who is on your Project and who is sending materials to your Project. Page 38

39 Key Points on Defensive (cont.) Obtain Bond Waivers from 1 st Tier Subcontractors and Suppliers, as well as 2 nd Tier Subcontractors and Suppliers who have given a Notice of Furnishing Labor or Materials. Watch the clock. Be aware of the 90 day period and 1 year period and attempts by parties to extend their time for pursuing a payment bond claim. Page 39

40 Demand Letters SC Code Demand letter for payment to Surety to make a fair and reasonable investigation of the claim. Allows recovery of Attorney fees and Interest Page 40

41 Subcontractors and Suppliers Payment Protection Act S.C. Code Paid if paid not enforceable Paid when paid enforceable, but only for a reasonable amount of time Creates duty, giving rise to private cause of action, against a government entity for failure to ensure that a contractor is properly bonded. Sloan Construction v. Southco Grassing, 377 SC 108 (2008). Payment defense still applicable. Page 41

42 Prompt Pay Act SC Code Contract performance entitles party to payment from owner within 21 days of pay request. Contractor to pay its subcontractors within 7 days Does not include disputed amounts Contract may state different timeframes Penalty 1% a month or other contracted for amount if NOTICE is given at time of demand that interest is being charged Page 42

43 Failure to Pay Subs is Criminal SC Code Crime for Contactor or sub to not pay lower tiers out of money they receive from their contract. Criminal Penalties Under $100 Fine $100 to $500 or Imprisoned up to 30 days Over $100 Fine of $500 to $1,000 or Imprisoned 3-6 months Page 43

44 MECHANIC S LIENS Page 44

45 MECHANIC S (CONSTRUCTION) LIENS Purpose and Theory What Property is Lienable Notice Requirements The Suit to Enforce the Lien Timing Venue Proper Parties Procedure Page 45

46 MECHANIC S (CONSTRUCTION) LIENS Suppliers & Subcontractors Which Statute Applies Supplier Proof Requirements Notice of Project Commencement Page 46

47 MECHANIC S (CONSTRUCTION) LIENS Suppliers & Subcontractors Which Statute Applies Supplier Proof Requirements Notice of Project Commencement Notice of Furnishing of Labor or Materials Page 47

48 MECHANIC S (CONSTRUCTION) LIENS Suppliers & Subcontractors Which Statute Applies Supplier Proof Requirements Notice of Project Commencement Notice of Furnishing of Labor or Materials Payments After the Filing of Lien Bonding Off Lien Unlicensed Contractors Page 48

49 Project Name Owner G C Date last Material Shipped Date notice of Furnishing Material Date Notice of Commence Date Building Permit Account Balance Okraberry at the Farm Fairway Oaks & Ocean Breezes The Ocean Co. Happy GC 01/29/10 02/12/ Happy GC 09/23/09 02/12/ Dept. of Social Services Special Needs Center SC Dept. of ABC Builders 08/02/09 02/04/10 01/22/09 10/15/ Social Services Midlands Center Hogbreath Island Island IGA Store IGAStore Teakwood Townhouses Shelbray Assoc., LP ABC Builders 01/09/10 02/04/10 11/13/08 10/29/ AC Development ABC Builders 01/24/10 02/04/10 11/14/08 10/26/ Club, LLC AC Development ABC Builders 08/30/09 02/04/10 11/14/08 10/26/ Club, LLC Seascape, LLC Happy GC 01/24/10 02/12/10 04/29/09 04/23/ Page 49

50 Bonding Off Lien Contractor Files $30, Lien Owner Posts $40, Bond (1/3 Amount of Lien) Contractor Limited to $40, Recovery when otherwise could have recovered $30, Attorneys Fees. Potential Recovery $60, Bond $40, Net Savings= $20, Page 50

51 MECHANIC S (CONSTRUCTION) LIENS Waiver, Release Failure to Perform Extra Work Settlement Offers, Set-Offs and Compulsory Counterclaims Priorities Mechanic s Lien vs. Mortgage Mechanic s Lien vs. Mechanic s Lien Mechanic s Lien vs. Other Liens Mechanic s Lien vs. Good Faith Purchaser Page 51

52 Example 1 Contractor File $25, Lien Owner makes written offer of $10, Contractor makes counteroffer of $20, $20, $15, Midpoint $10, Page 52

53 Example 2 Contractor Files $25, Lien Owner makes written offer of $10, Contractor does not counter $25, $17, Midpoint $10, Page 53

54 Example 3 Contractor Files $25, Lien Owner makes no settlement offer Contractor makes offer of $20, $20, $10, Midpoint $ 0.00 Page 54

55 MECHANIC S (CONSTRUCTION) LIENS Contractor s Defenses Against Subcontractor and Supplier Liens Contractual Defenses Statutory Defenses Other Defenses Page 55

56 Page 56

57 Page 57

58 MECHANIC S (CONSTRUCTION) LIENS Contractor s Lien Checklist File Notice of Project Commencement within 15 days of work commencing. Post Location Notice on job site. File and serve Notice and Certificate of Mechanic s Lien, Affidavit of Mechanic s Lien, and Statement of Account within 90 days of last performing work or furnishing materials. File suit to foreclose mechanic s lien and notice of lis pendens within six months of last performing work or furnishing materials. Page 58

59 MECHANIC S (CONSTRUCTION) LIENS Contractor s Defense Checklist Contractual Defenses Progress Payment Use Restrictions Payment Use Verification Partial Lien Waivers Contractor s Remedial Actions for Subcontractor s improper payment Statutory Defenses Other Defenses Page 59

60 MECHANIC S (CONSTRUCTION) LIENS Contractor s Defense Checklist Statutory Defenses Notice of Project Commencement Notice of Intent to Lien Notice Time Limitations Statement of Account Timely Suit to Enforce Lien Lis Pendens Proof Requirements Page 60

61 MECHANIC S (CONSTRUCTION) LIENS Contractor s Defense Checklist Other Defenses Bonding Off Lien Subcontractor s Licenses (where subcontractor required by law to have license) Waiver, Release, Failure to Perform Settlement Offers, Counterclaims and Set-offs Page 61

62 South Carolina Mechanic s Lien Check List Subcontractor/Vendor Supplier and Remote Claims n Sub-subcontractor and supplier to subcontractors serve Notice of Furnishing Labor or Materials on General Contractor. Service can be effected by certified mail, return receipt requested, restricted delivery. Prepare Statement of Account n Prepare and file the Notice and Certificate of Mechanic s Lien, Affidavit of Mechanic s Lien and Statement of Account in the Office of the Register of Deeds, the Clerk of Court for the county in which the property is located. Time Requirement: must file within 90 days of last performance or furnishing of materials. Page 62

63 South Carolina Mechanic s Lien Check List Subcontractor/Vendor Supplier and Remote Claims Serve the Notice and Certificate of Mechanic s Lien, Affidavit of Mechanic s Lien and Statement of Account on the Owner of Record and all other upstream parties in claim of contracting. Service can be effected by certified mail, return receipt requested, restricted delivery. Time requirement: must serve within 90 days of last performance or furnishing of materials. Suit to Foreclose on Lien Time requirement: suit to foreclose on lien must be filed within six (6) months of last performance or furnishing of materials Page 63

64 Mechanics Lien Test Is someone who chooses to file and foreclose a mechanics lien limited to that remedy only? If not, what other remedies are available against the general contractor (if applicable) and against the owner? NO Payment Bond Claim, Action for Breach of Contract and/or Unjust Enrichment, and Demand Letter. Page 64

65 Mechanics Lien Test A Mechanic s Lien may attach only to a fee-simple ownership interest. FALSE Lien will attach to whatever the interest of the owner of the improvement. Page 65

66 Mechanics Lien Test What limits exist on liability of an owner of property to a subcontractor or supplier with whom he does not have a contract? Limited by the amount owed on the contract. Page 66

67 Mechanics' Lien Test What procedure might a general contractor follow to guard against surprise by remote claimants? File and post a Notice of Project Commencement. Page 67

68 Mechanics' Lien Test A mechanic s lien takes priority over all other liens. FALSE A mechanic s lien will not have priority over a real estate mortgage on the property which has been duly filed for record prior to the filing of the statement of mechanic s lien. Page 68

69 Mechanics' Lien Test When is the deadline for filing suit and perfecting a mechanic s lien? a. 90 days from the last furnishing of labor or materials b. 180 days from the last furnishing of labor or materials c. 6 months from the last furnishing of labor or materials d. 6 months from the filing of the mechanic s lien c. 6 months from the last furnishing of labor or materials Page 69

70 Mechanics' Lien Test Is an inaccurate property description fatal to a lien? YES Page 70

71 Mechanics' Lien Test How may a remote claimant ensure payment in the event the person it contracts with defaults? By serving the General Contractor with a Notice of Furnishing Labor or Materials. Page 71

72 William ( Trey ) W. Watkins, Jr. 145 King Street, Suite 300 Charleston, SC

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