Reference is to Printer's Date 4/13/16-H.
Amend the bill, as and if amended, by striking SECTION 1 in its entirety and inserting:
/ SECTION 1. Title 6 of the 1976 Code is amended by adding:
Section 6-38-10. For
purposes of this chapter:
(1) A building,
structure, condition, or property is 'dilapidated' if it is not
in substantial compliance with one or more county or municipal
ordinances regarding:
(a)
prevention of substantial risk of injury to a person; or
(b)
condition of the property constituting an imminent danger
to the public health or safety.
(2) 'Imminent danger'
means a condition that could cause serious or life-threatening
injury or death at any time.
(3) 'Owner of record'
means a person who is the owner of property according to the
most recently approved county tax roll.
(4) 'Unsafe structures'
means commercial buildings that are found to be unoccupied and
dangerous to the life, health, property, or safety of the
public.
(5) 'Substantial
compliance' means compliance that satisfies the purpose or
objective of the basic or essential requirements of the local
ordinance relating to unsafe structures even though the
compliance failed to meet some specifics of the ordinance.
(6) 'Substantial risk'
means a strong possibility, as contrasted with a remote or even
a significant possibility, that a particular result may occur or
that a particular circumstance may exist. It is risk of such a
nature and degree that to disregard it constitutes a gross
deviation from the standard of care that a reasonable person
would exercise in such a situation.
Section 6-38-20. (A)
The rules of equity govern an action as
provided by this chapter unless inconsistent with this chapter
or general law.
(B) In applying this
chapter, the court shall operate with the presumption that
private property should not have a receiver and, therefore,
given this presumption:
(1)
a receiver shall be viewed as a special, extraordinary
equitable remedy to be used sparingly and a receiver must not be
appointed unless there is clear and convincing evidence that the
appointment is necessary to address an immediate threat to
public health or safety;
(2)
all feasible efforts must be made to protect and preserve
the property rights of existing property owners and lien holders
of record; and
(3)
the order appointing a receiver shall recite specifically
the evidence that permits the court to exercise its
extraordinary authority pursuant to this chapter.
(C) In applying this
chapter, a court is explicitly authorized to exercise its
inherent equitable discretion and, in so doing, take into
account reasonable steps that might be taken, such as the
following:
(1)
avoiding judicial actions immediately after a state or
national disaster, such as a hurricane, so as to give owners or
lien holders additional time to respond, to make repairs, or to
otherwise maintain the status quo in light of such highly
unusual exceptional situations;
(2)
phasing in necessary repairs that are most appropriate for
the situation and direct incremental repairs to portions of a
building where necessary to preserve public safety or to
ameliorate imminent danger.
Section 6-38-30. (A)
Before filing an action as provided by this
chapter, the county or municipality must have:
(1)
developed and followed its locally adopted procedures to
deal with the abatement of unsafe structures by measures up to,
but not including, demolition pursuant to authority granted to
counties or municipalities in Sections 31-15-20 and 5-7-80;
(2)
given the owner of record proper notice as required and
reasonable time under the circumstances for the correction of a
condition pursuant to Section 5-25-390 or codes properly adopted
by a county or municipality pursuant to Sections 6-9-50 or
6-9-60;
(3)
by resolution of the governing body declared the property
or structure unsafe for human occupancy; and
(4)
given written notice by certified mail to the owner of
record and all lien holders of:
(a)
an ordinance violation, and
(b)
reasons the county or municipality believes there is a
serious, present, and imminent public health harm or safety
hazard, alleged to exist on the property.
(B) The notice required
in subsection (A)(4) must be served in accordance to the rules
of South Carolina Civil Procedure and by posting of the property
in accordance with Section 6-29-760.
Section 6-38-40. (A)
After at least sixty days have passed since
the notice required by Section 6-38-30(A)(4), a county or
municipality may bring an action against an owner of record and
name any lien holder of record.
(B) After the action is
filed, a potential receiver may request the court to authorize
the potential receiver to enter the property in order to assess
the condition of the property and to make a preliminary
determination of measures necessary to address the problems with
the property. Limitations may be imposed on the authorization in
terms of the time and manner of entry and assessment.
(C) Before granting the
authorization pursuant to subsection (B), at least seven days
notice must be served:
(1)
to the physical address of the property, with one copy
addressed to the owner and one copy addressed to occupant, and
(2)
to the best available address in accordance with Section
12-51-40(a), and
(3)
to any lien holder of record.
Section 6-38-50. (A)
Within seven days of filing a receivership
action as provided by this chapter, a county or municipality
bringing the action shall serve notice of the proceedings to
each owner of record, lien holder, and holder of recorded
property interests in accordance with the South Carolina Rules
of Civil Procedure and by posting of the property in accordance
with Section 6-29-760. An owner of record, lien holder, or
holder of a recorded property interest who is not available
after due diligence may be served by alternative means,
including publication, as prescribed by the South Carolina Rules
of Civil Procedure. Actual service or service by publication on
an owner of record or a lien holder of record constitutes notice
to each owner of record, lien holder of record, or others with a
recorded property interest of the same ownership interest, lien,
or property interest. Copies of names and addresses of those
given notice must be supplied to the court at the time notice is
given.
(B) Within seven days
of filing an action, a county or municipality bringing action as
provided by this chapter shall file a notice of lis pendens to
provide constructive notice of the pending action.
Section 6-38-60. An
owner of record, lien holder of record, or other person with a
recorded property interest in a property that is the subject of
an action as provided by this chapter may:
(1)
intervene in the action; and
(2)
request appointment as a receiver pursuant to this chapter
if the lien holder or other person with a recorded property
interest demonstrates to the court an ability and willingness to
repair the property.
Section 6-38-70. The
following may serve as a court-appointed receiver:
(1) an entity not
including a county or municipality that the court determines has
sufficient capacity, resources, and experience repairing
properties and abating code violations, or both;
(2) an individual the
court determines to have sufficient capacity, resources, and
experience repairing properties and abating code violations, or
both;
(3) in the case of
historic properties, an entity not including a county or
municipality, a nonprofit organization, or an individual the
court determines to have sufficient capacity, experience, and
demonstrated record of repairing historical buildings to comply
with the guidelines for repairing historic properties
established by the United States Secretary of the Interior
pursuant to 16 U.S.C. Section 470, et seq., or the historic
preservation ordinance of the county or municipality, if
applicable;
(4) a licensed and
bonded contractor in the State of South Carolina;
(5) a lien holder
requesting appointment pursuant to Section 6-38-60; or
(6) an owner of record
requesting appointment pursuant to Section 6-38-60.
Section 6-38-80. (A)
The court may appoint a receiver for the
property for a term:
(1)
not to exceed two years; or
(2)
for a time determined appropriate by the court based on
the nature of the work to be done.
(B) The court may
determine by specific facts noted in a written order:
(1)
the evidence which permits the court to exercise its
extraordinary authority as provided by this chapter, and
(2)
the time period for receivership. In addition to the facts
relevant to this extraordinary exercise of the equitable power
of the court, the findings of the court must include the
following:
(a)
structures on the property are in substantial violation of
one or more ordinances of the county or municipality pursuant to
Section 6-38-30;
(b)
the property is not a single-family residence;
(c)
the property does not have one to four family residences
where at least one unit is occupied;
(d)
the property is not currently in a probate, foreclosure,
or bankruptcy proceeding; and
(e)
the property is not classified as agricultural real
property pursuant to Section 12-43-220(d)
Section 6-38-90.
Subject to control of the court and the rights of any
prior lien holder of record, a court-appointed receiver has all
powers necessary and customary to the powers of a receiver as
provided by the laws of equity and may:
(1) take possession and
control of the property;
(2) operate and manage
the property;
(3) establish and
collect rents and income on the property;
(4) lease the property;
(5) make repairs
necessary to bring the property into compliance with local
codes, ordinances, and state laws, including:
(a)
performing and entering into contracts for the performance
of work and the furnishing of materials for repairs; and
(b)
entering into loan and grant agreements for repairs to the
property;
(6) pay expenses,
including paying for utilities and paying current taxes, taxes
in arrears and current assessments and assessments in arrears,
insurance premiums, and reasonable compensation to a property
management agent;
(7) enter into
contracts for operating and maintaining the property;
(8) exercise all other
authority of an owner of the property other than the authority
to sell the property; and
(9) perform other acts
regarding the property as authorized by the court.
Section 6-38-95. (A)
In exercising the powers pursuant to Section
6-38-90, and in submitting the reports required by Section
6-38-100, and in completing any work as a receiver, the receiver
must plan and execute his duties with honesty, good faith,
reasonable diligence, and in the most economically prudent
manner possible, utilizing measures to minimize costs and
seeking competitive bids for services.
(B) If a receiver's
exercise of powers, submission of reports, and completion of
work do not meet the standard set forth in subsection (A), the
receiver is liable for economic damages and, at the discretion
of the court, treble damages.
Section 6-38-100. (A)
Before beginning any work the receiver shall
submit to the court for its approval a detailed report
describing the problems associated with the property and a
detailed plan for abating the problems. The receiver shall
provide a copy of the report and estimate to the owner of
record, lien holders, and others with a recorded property
interest.
(B) This report
required by subsection (A) must be accompanied by a performance
bond or performance bond binder as well as a detailed timeline
for completion of the work.
(C) The receiver shall
submit progress reports every forty-five days or as the court
determines to demonstrate compliance with the time schedules
established for commencement and performance of the work.
Section 6-38-110. A receiver shall have a lien on the property for all of the unreimbursed costs and expenses of the receiver, plus a receivership fee, the amounts of which are subject to the discretion of the court pursuant to Sections 6-38-140 and 6-38-150.
Section 6-38-120. (A)
If a loss occurs to the property entrusted
to the receiver as a result of the receiver's negligence, the
receiver shall be liable for economic damages.
(B) If the loss occurs
as a result of fraudulent execution of trust, the receiver shall
be liable for economic damages and, at the discretion of the
court, treble damages.
Section 6-38-130. (A)
A receiver appointed pursuant to this
chapter may demolish a structure only after a hearing.
(B) Before the hearing,
the receiver shall prepare a detailed report which establishes:
(1)
it is not economically feasible to bring the structure
into compliance with local codes, local ordinances, and state
laws; and
(2)
the structure:
(a)
is unfit for human habitation; or
(b)
is a hazard to public health or safety.
(C) At least ninety
days before the hearing, notice must be sent, along with the
report, to all owners of record, all lien holders, and all
others with a recorded property interest. In addition, the
property must have been posted in accordance with Section
6-29-760(A) for at least ninety days before the hearing.
(D) At the hearing, the
court shall determine whether demolition is appropriate. In
making this determination, the court shall consider:
(1)
whether any owner, lien holder, or other person with a
recorded interest has appeared to explain to the court's
satisfaction why the property has been left in its current
state; and
(2)
the factors listed in subsection (B). In considering these
factors, the court also may consider whether the property is
unsecured from unauthorized entry to the extent that it can be
entered or used by vagrants or other uninvited persons as a
place of harborage or can be entered or used by children. If the
property is boarded, fenced, or otherwise secured, the court may
consider whether:
(a)
the structure constitutes a danger to the public even
though secured from entry; or
(b)
the means used to secure the structure are inadequate to
prevent unauthorized entry or use of the structure.
Section 6-38-140. A
receiver who completes repairs to a structure or demolishes a
structure, upon or before petitioning a court for termination of
the receivership, shall file with the court a full accounting
of:
(1) all costs and
expenses incurred in the repairs or demolition, including
reasonable costs for labor and supervision;
(2) all income received
from the property; and
(3) at the discretion
of the court, a receivership fee not to exceed ten percent of
the costs and the expenses in item (1).
Section 6-38-150. (A)
Subject to the provisions of subsection (E),
a receiver appointed as provided by this chapter shall be
terminated in accordance with Section 6-38-80. In addition, a
receiver may petition the court to terminate the receivership
and order the sale of the property, as provided in subsection
(B) if:
(1)
the work has been successfully completed; and
(2)
at least ninety days before filing for termination, the
owners of record, lien holders, and others holding recorded
property interests have been served notice as provided in
Section 6-38-60 of a summary accounting of costs and expenses
paid by the receiver and of a receivership fee, which must not
exceed ten percent of reasonable costs and expenses.
(B) The court may order
the sale of the property at public auction if the court finds
that:
(1)
notice as required by subsection (A) was given to each
owner of record, lien holder, and holder of a recorded property
interest;
(2)
the receiver's costs and fees are reasonable based on:
(a)
nature, extent, and difficulty of the services rendered;
(b)
time and labor devoted to the case;
(c)
professional standing of the receiver;
(d)
contingency of compensation;
(e)
fee customarily charged in the locality for similar
services; and
(f)
beneficial results obtained;
(3)
the receiver has been in control of the property and the
owner has failed to repay all the receiver's outstanding costs
and expenses of rehabilitation plus a reasonable receivership
fee; and
(4)
a lien holder of record or other holder of a recorded
property interest has not intervened in the action and tendered
the costs and expenses of the receiver, plus a receivership fee
which must not exceed ten percent of reasonable costs and
expenses, and assumed control of the property.
(C) Where demolition of
the structure is involved, the court may authorize the sale of
the property to an individual or organization that will bring
the property into productive use so long as the requirements of
subsections (A) and (B) are satisfied.
(D) If the revenue from
the sale exceeds the total of the costs and expenses listed in
Section 6-38-160(A), any net overage belongs to the owner
pursuant to Section 6-38-160(B).
(E) If the total of the
costs and expenses incurred by the receiver plus a receivership
fee, not to exceed ten percent of reasonable costs and expenses,
exceeds the combined value of the likely possible revenue from a
sale and the income produced during the receivership, the court
may permit the receiver to maintain control of the property
until the following are recovered: all rehabilitation and
maintenance costs plus a fee, which must not exceed ten percent
of reasonable costs and expenses.
Section 6-38-160. (A)
The court shall confirm a sale as provided
by this chapter and order a distribution of the proceeds of the
sale in the following order:
(1)
court costs;
(2)
costs and expenses, plus a reasonable receivership fee,
and any lien held by the receiver; and
(3)
other valid liens.
(B) Any remaining
overage belongs to the owner of record. These sums are payable
ninety days after execution of the deed unless a judicial action
is instituted during that time by another claimant. If neither
claimed nor assigned within five years of date of public auction
sale, the overage must escheat to the general fund of the
governing body to be set aside for the purposes of this chapter.
Before the escheat date unclaimed overages must be kept in a
separate account and must be invested so as not to be idle; the
governing body of the political subdivision is entitled to the
earnings for keeping the overage. On escheat date the overage
must be transferred to the general funds of the governing body.
Section 6-38-170. (A)
The court shall award fee title to the
purchaser after the proceeds are distributed. If proceeds from
the sale are insufficient to pay all liens, claims, and
encumbrances on the property, the court shall extinguish all
unpaid liens, claims, and encumbrances on the property and award
title to the purchaser free and clear.
(B) This chapter does
not foreclose any right or remedy that may be available pursuant
to other state law or the laws of equity."
/
Renumber sections to conform.
Amend title to conform.