Bill 233

                    Current Status

Bill Number:               233
Ratification Number:       497
Act Number                 426
Introducing Body:          Senate
Subject:                   Contractors, subcontractors, and
                           suppliers; timely payment required

(A426, R497, S233)

AN ACT TO AMEND TITLE 29, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO MORTGAGES AND OTHER LIENS, BY ADDING CHAPTER 6 SO AS TO PROVIDE FOR TIMELY PAYMENTS TO CONTRACTORS, SUBCONTRACTORS, AND SUPPLIERS, TO PROVIDE FOR INTEREST ON LATE PAYMENTS, AND TO PROVIDE EXCEPTIONS.

Be it enacted by the General Assembly of the State of South Carolina:

Contractors, subcontractors, and suppliers; timely payment required

SECTION 1. Title 29 of the 1976 Code is amended by adding:

Section 29-6-10. Unless the context otherwise requires in this chapter:

(1) 'Contractor' means a person who contracts with an owner to improve real property or perform construction services for an owner.

(2) 'Improve' means to build, effect, alter, repair, or demolish any improvement upon, connected with, or on or beneath the surface of any real property, or to excavate, clear, grade, fill, or landscape any real property, or to construct driveways and roadways, or to furnish materials, including trees and shrubbery, for any of these purposes, or to perform any labor upon these improvements, and also means and includes any design or other professional or skilled services furnished by architects, engineers, land surveyors, and landscape architects.

(3) 'Improvement' means all or any part of any building, structure, erection, alteration, demolition, excavation, clearing, grading, filling, or landscaping, including trees and shrubbery, driveways, and roadways on real property.

(4) 'Owner' means a person who has an interest in the real property improved and for whom an improvement is made and who ordered the improvement to be made. 'Owner' includes any state, local, or municipal government agencies, instrumentalities, or entities.

(5) 'Real property' means the real estate that is improved, including lands, leaseholds, tenements, and hereditaments, and improvements placed on the real property.

(6) 'Subcontractor' means any person who has contracted to furnish labor or materials to, or has performed labor or supplied materials for, a contractor or another subcontractor in connection with a contract to improve real property.

Section 29-6-20. Performance by a contractor or subcontractor in accordance with the provisions of his contract entitles him to payment from the party with whom he contracts.

Section 29-6-30. When a contractor or a subcontractor has performed in accordance with the provisions of his contract, the owner shall pay the contractor by mailing via first class mail or delivering the undisputed amount of any pay request within twenty-one days of receipt by the owner of any pay request based upon work completed or service provided under the contract, and the contractor shall pay to his subcontractor and each subcontractor shall pay to his subcontractor, within seven days of receipt by the contractor or subcontractor of each periodic or final payment, by mailing via first class mail or delivering the full amount received for that subcontractor's work and materials based on work completed or service provided under the subcontract.

Section 29-6-40. Nothing in this chapter prevents the owner, the contractor, or a subcontractor from withholding application and certification for payment because of the following: unsatisfactory job progress, defective construction not remedied, disputed work, third party claims filed or reasonable evidence that claim will be filed, failure of contractor or subcontractor to make timely payments for labor, equipment, and materials, damage to owner, contractor, or another subcontractor, reasonable evidence that contract or subcontract cannot be completed for the unpaid balance of the contract or subcontract sum, or a reasonable amount for retainage.

Nothing in this chapter requires that payments due a contractor from an owner be paid any more frequently than as set forth in the construction documents, nor shall anything in this chapter affect the terms of any agreement between the owner and any lender.

Section 29-6-50. If a periodic or final payment to a contractor is delayed by more than twenty-one days or if a periodic or final payment to a subcontractor is delayed by more than seven days after receipt of periodic or final payment by the contractor or subcontractor, the owner, contractor, or subcontractor shall pay his contractor or subcontractor interest, beginning on the due date, at the rate of one percent a month or a pro rata fraction thereof on the unpaid balance as may be due. However, no interest is due unless the person being charged interest has been notified of the provisions of this section at the time request for payment is made. Nothing in this chapter shall prohibit owners, contractors, and subcontractors, on private construction projects only, from agreeing by contract to rates of interest and payment periods different from those stipulated in this section, and in this event, these contractual provisions shall control, provided the requirements of Section 29-6-30 and this section are specifically waived, by section number, in conspicuous bold-faced or underlined type. In case of a wilful breach of the contract provisions as to time of payment, the interest rate specified in this section shall apply.

Section 29-6-60. The provisions of this chapter do not apply to:

(1) residential homebuilders;

(2) improvements to real property intended for residential purposes which consist of sixteen or fewer residential units; or

(3) private persons or entities owning improvements to real property when the specific improvements are not financed by a nonowner."

Time effective

SECTION 2. This act takes effect upon approval by the Governor.

Approved the 24th day of April, 1990.