Notice of Commencement Requirement
Generally, a Notice of Commencement is a form publicly filed to signify that a construction project is beginning, or has begun. While Notice of Commencement filing and content requirements are generally similar throughout states in which they are required, South Carolina’s Notice of Project Commencement has some unique features. A South Carolina Notice of Commencement not only must be filed, but certain, and specifically worded, information must also be posted in the job site itself.
South Carolina is one of the relatively few states in which the ability to file a Notice of Project Commencement is specifically set forth by the state’s mechanics lien law. While South Carolina does not require that a Notice of Project Commencement be filed, the decision to file or not file a South Carolina Notice of Commencement has significant impacts on the mechanics lien requirements of sub-tier parties.
Many voluntary notice filings provide little benefit to the filing party. This is not necessarily the case with respect to a South Carolina Notice of Commencement, however. When an NOC is filed in South Carolina, it can modify the lien or bond claim rights available to sub-tier participants, and impact those parties’ notice requirements. Accordingly, every participant on a construction project in South Carolina has an interest in the Notice of Commencement, and a South Carolina Notice of Commencement has an effect on everybody the project.
This means it’s very important for everybody who works on construction projects in South Carolina to have an understanding of what a Notice of Commencement is, and why it matters.
The process is important, and the South Carolina Notice of Commencement has significant impacts on payment and lien rights and procedures. A South Carolina GC fill out and file a Notice of Commencement directly with Clerk of Court or recorder of Deeds in the county in which the project is located, or, of course, they can make the NOC process really easy by just filing the document using an online platform.
This page provides frequently asked questions, forms, and other helpful information about the South Carolina Notice of Commencement.
Watch this short video that explains important Notice of Commencement requirements in easy to understand terms.
No. In South Carolina, the Notice of Commencement filing is only applicable to the GC (or “[a]ny person entering into a direct agreement with, or with the consent of, an owner for the improvement of real property”).
It is not specifically described by statute, but it is possible that a “owner-builder” acting as their own GC may be able to file a South Carolina Notice of Commencement to gain certain protections.
No. Unlike some other states in which a Notice of Commencement may be filed by the GC, South Carolina imposes no obligation to provide a copy of the notice to the property owner. However, along with being filed in the county property records of the county in which the project is to take place, certain information must also by posted on the job site itself.
No, not specifically.
However, if the Notice of Commencement is not filed, certain other notice provisions for sub-subcontractors and suppliers to subcontractors are rendered inapplicable, and the value of liens asserted by such parties are not limited to the amount unpaid by the GC to the subcontractor with whom the claimants contracted.
According to South Carolina’s mechanics lien laws, a Notice of Commencement may be filed by “any person entering into a direct agreement with, or with the consent of, an owner for the improvement of real property.”
It is interesting to note that the language “with the consent of the owner” appears to potentially open up the filing to parties other than direct contractors – although the reasons for doing so would be unclear, as the party gaining benefits from filing a Notice of Commencement in South Carolina is the GC.
South Carolina has strict deadlines for filing a Notice of Project Commencement, even though the filing is voluntary.
When the GC chooses to file the Notice of Commencement and gain the benefits therefrom, the notice must be filed “within fifteen days of the commencement of work.” According to statute, there must also be certain information posted at the job site, but it is not specifically clear whether the same timing provisions apply. Best practice would likely be to make sure the required notice information is posted at the job site concurrently with the delivery of the Notice of Commencement to the county for recording, but South Carolina law does specify whether posting at a later time would invalidate a properly filed notice.
Note, however, if the 15-day deadline for filing the document is missed, the GC cannot gain the benefits therefrom, and the notice provisions and lien limitations do not apply.
South Carolina law requires that, when applicable, a South Carolina notice of commencement must be filed “with the clerk of court or register of deeds in the county or counties where the real property is situated” and that the name and address of the contractor along with a “location notice” including specific wording must be posted at the job site.
Accordingly, this means that (at least) two distinct steps must be undertaken:
1. Getting it Filed
South Carolina requires that the notice be filed with the clerk or court or register of deeds. This is not really a choice, however. South Carolina counties have different recording locations sometimes the clerk of court, and sometimes the register of deeds. A handy list of the recording offices for each South Carolina county, with contact information, can be found here.
Alternatively, you can also file your South Carolina Notice of Commencement electronically here.
2. Post on Job Site
The second part of the requirement is that information must be posted at the job site. The “name and address of the contractor” and a “location notice” must be posted. And, the location notice must include the following statement verbatim: “The contractor on the project has filed a notice of project commencement at the county courthouse. Sub-subcontractors and suppliers to subcontractors shall comply with Section 29-5-20 when filing liens in connection with this project.”
The filing of a Notice of Commencement does not have any effect on a GC’s lien rights. However, it may have an impact on lien exposure or liability.
If a notice of commencement is filed, the failure of a sub-subcontractor or supplier to a subcontractor to send a notice of furnishing will limit the amount of any liens filed to the amount the GC still owes the subcontractor with whom the sub-tier lien claimant contracted.
No. Unlike some other states with strict time limits for the effective period of a Notice of Commencement, there is no specific effective period set forth by South Carolina law for a notice of commencement in that state.
While South Carolina Code 1976 § 29-5-23, the statute governing Notices of Commencement does not specifically require a Notice of Commencement to be notarized (or, for that matter, even signed by the GC) – since the document is to be recorded, counties may impose a notarization requirement.
In fact, nearly all form templates available for South Carolina Notices of Commencement, even those supplied directly by the counties themselves, include a notarization box.
No, there is no specific requirement in South Carolina for a notice of commencement to be terminated or released. The release or termination of a Notice of Commencement is not contemplated by the statutes related to the NOC filing. As an NOC is a recorded document, a purported “release or cancellation” of a previously filed NOC may be a document that would also be filed, but there is no specific effect that such a filing would have on the project.
In South Carolina, a Notice of Commencement is only to be filed by the GC. As the filing of a Notice of Commencement can limit the effectiveness of a sub-tiered party’s mechanics lien our bond claim rights, it does not make sense for any sub-tier party to file a Notice of Commencement.
Yes, kind of.
South Carolina statute states that: “The failure to file a notice of project commencement shall render the provisions of Sections 29-5-20(B) and 29-5-60(B) inapplicable” as well as “The failure to file a notice of project commencement shall also render the provisions of Sections 29-5-440, 11-35-3030(2)(c), 57-5-1660(b), and 11-1-120, relating to the requirement of a notice of providing labor, materials, or rental equipment inapplicable for a claim against a payment bond.”
So, for the purposes of making a bond claim, the failure of the GC to file a Notice of Commencement renders other preliminary notice requirements inapplicable.
For lien claims, the consequences of the GC’s filing of a Notice of Commencement are a little more complex, since South Carolina does not generally require preliminary notices be provided in order to maintain lien rights. If the GC does not file a Notice of Commencement, 29-5-20(B) does not apply. That section specifies that the aggregate amount of liens filed by sub-subcontractors or suppliers to subs cannot exceed the amount due front he GC to the subcontractor with whom the lien claimant contracted unless a notice of furnishing is provided. So, if the NOC is not filed, sub-subs and suppliers to subs are provided with “full-price” mechanics lien protection rather than type of unpaid balance lien, without the need to file a specific notice.
As noted above, the right to file a lien is not dependent on or affected by the filing of any Notice of Commencement. However, the amount that can be validly claimed in a lien may be impacted by the filing of a Notice of Commencement.
No. Just like private projects in South Carolina, there is no specific requirement for a Notice of Commencement to be recorded.
Note, however, that the Notice of Commencement statute within the mechanics lien laws specifically notes how the filing or non-filing of a Notice of Commencement can impact notice requirements with respect to making a bond claim, and specifically cites portions of the law regarding public projects.
Accordingly, while there is no specific NOC requirement for public projects, it appears that one can be filed and can provide certain benefits similar to those obtained on private projects.
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Complies with the statute. Forms for every county!
South Carolina’s mechanic’s lien statute can be found in South Carolina’s Mechanics’ Lien Law, Code 1976 § 29-5-10 et. seq. And, the rules and requirements specifically related to the Notice of Commencement process can be found at § 29-5-23. Notice of Project Commencement; Location Notice; Failure to File Notice.
You can read the law directly on the state legislature’s website here, and it is reproduced below. Further, § 29-5-23 is a selected excerpt from the full construction lien statute in South Carolina which can be found on our South Carolina Mechanics Lien FAQs page.
Any person entering into a direct agreement with, or with the consent of, an owner for the improvement of real property may file with the clerk of court or register of deeds in the county or counties where the real property is situated a notice of project commencement. The notice of project commencement shall contain the following information:
(1) the name and address of the person filing the notice of commencement;
(2) the name and address of the owner or developer;
(3) a general description of the improvement; and
(4) the location of the project.
The notice must be filed within fifteen days of the commencement of work and must be accompanied by a filing fee of fifteen dollars to be deposited in that county’s general fund. The name and address of the contractor must be posted at the job site. A location notice also must be posted at the job site. The location notice must contain the following statement: “The contractor on the project has filed a notice of project commencement at the county courthouse. Sub-subcontractors and suppliers to subcontractors shall comply with Section 29-5-20 when filing liens in connection with this project.” The failure to file a notice of project commencement shall render the provisions of Sections 29-5-20(B) and 29-5-60(B) inapplicable. The failure to file a notice of project commencement shall also render the provisions of Sections 29-5-440, 11-35-3030(2)(c), 57-5-1660(b), and 11-1-120, relating to the requirement of a notice of providing labor, materials, or rental equipment inapplicable for a claim against a payment bond furnished by a contractor holding a direct contractual agreement with an owner. The filing of a notice of project commencement shall not constitute a cloud, lien, or encumbrance upon, or defect to, the title of the real property described in the notice, nor shall it alter the aggregate amounts of liens allowable under Section 29-5-40, nor shall it affect the priority of any mortgage filed before or after the notice, nor shall it affect any future advances under any mortgage. The clerk of court or register of deeds in each county shall maintain a separate book and index of all notices of project commencements.