Could a car owner face larceny charges for taking a vehicle from a repair shop that held a lien?

Plain-English summary

A police captain described a customer who disputed a garage's bill and drove away in the repaired vehicle despite the shop's objection. The 2001 informal opinion said South Carolina had no specific statute criminalizing that precise removal, but a larceny charge was not ruled out merely because the customer owned the car. An owner could wrongfully deprive another person of lawful possession. The AG said a charge depended on unauthorized taking, the shop's lien and possession, intent, and the other elements of larceny.

The opinion left the particular charging decision to police, a warrant-issuing judge, and the solicitor. It also distinguished a shop's voluntary surrender of possession, which would extinguish its mechanic's lien, from a customer's removal without consent, which could support restoration of possession for lien enforcement. The letter warned against conditioning a prosecution on payment of the debt.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did title to the car rule out larceny?
A: No. The AG said a person with title could still commit larceny by wrongfully taking property from someone entitled to possess it under a lien, if the remaining elements were present.

Q: Was every unpaid repair bill a criminal theft case?
A: No. The opinion required a factual review of authorization, possession, intent, and other circumstances. It did not decide the captain's example as a prosecution.

Q: Could the repair shop seek return of the car?
A: The AG said removal without consent entitled a lienholder to restoration of possession for lien enforcement; a footnote identified a possible civil claim-and-delivery action. Voluntary release of the car had a different effect.

Q: Could prosecutors trade a charging decision for payment?
A: The letter cautioned that conditioning prosecution on debt payment violated public policy, although payment could be a factor considered in a prosecution decision.

Background and statutory framework

The opinion applied South Carolina's common law definition of larceny to a vehicle held under a repair lien. It treated the lienholder's possessory right as legally relevant even though the customer held title.

Citations and references

• § 16-13-30
• §22-3-1310
• State v. Jackson
• Welcome Home Center. Inc. v. Central Chev. Co., Inc.
• Bouknight v. Headden

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-26-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01jan-26-brown.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
AITORNEY GENERAL

January 26, 2001

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Captain Billy Brown
Lake City Police Department
P.O. Box 1329
Lake City, South Carolina 29560
Re: Your Letter of November 17, 2000
Larceny-Property Subject to Lien
Dear Captain Brown:
Through your letter, you seek this Office's "advice and opinion" on legal options available to law enforcement when an owner of certain property removes that property from the possession of another who holds some type of mechanic's, artisan's or repairman's lien thereon. By way of background, you present the following scenario: A subject leaves a vehicle at a local garage for repair. Once the vehicle was repaired, the technician prepares the bill and parks the vehicle. The customer disputes the validity of the bill, refuses to pay, and then gets into the vehicle and drives away. The business owner/manager advises the customer not to take the vehicle without payment, but is unable to prevent this person from entering the vehicle without use of physical force. The business owner calls the police and a patrolman subsequently arrives and \Vrites a field incident report describing what took place. An investigator receives the case file the following day. Unsure of how to handle the situation. the investigator seeks advice from the city judge. After thorough review, the judge is not able to find within the South Carolina Codes a basis on which to issue a criminal warrant for the incident. You indicate that you "have been able to find grounds for prosecution of theft of cable television services, theft of electricity, theft of water from public systems, as well as a variety of larc~ny laws. However, the only information [you] have been able to locate concerning mechanics liens indicate that they are only subject to civil suit." You further indicate frustration in the apparent inapplicability of our criminal laws to the situations you describe .

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Captain Brown
Page 2
January 26, 2001

First, as your city judge has determined, there is not specific statutory law in the South Carolina Code criminalizing the unauthorized removal by the o\Vner of an automobile on which there exists some type of lien. This, however, does not necessarily end our inquiry. Depending on the specific facts, other general common law or statutory law may be applicable.

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In South Carolina, larceny is not defined by statute. 1 Rather, South Carolina continues to rely on the common law definition of larceny as the felonious or trespassory taking (without proper authorization) and carrying away of the property of another with the intent to steal. McAninch and Fairey, THE CRIMINAL LAW OF SOUTH CAROLINA (3d ed. 1996) (hereinafter "McAninch"); citing State v. Sweat, 221 S.C. 270, 70 S.E. 2d 234 (1952). To support a charge or conviction for larceny, the property taken must be that of another. State v. Jackson, 315 S.C. 219, 315 S.E.2d 19 (S.C. Ct.App.1993) (As a general proposition, a person cannot steal his own property). However, "[e ]ven though one may have title to the property in question, he commits larceny if he wrongfully deprives another of possession." McAninch at 255; citing Henrv v. State, 110 Ga. 750, 36 S.E. 55 (1900). A common example of a situation where an O\VTier holding title to property could be held criminally liable for larceny "'would involve an owner's taking without authorization his property from one with a mechanic's lien." State v. Jackson, supra, See also McAninch at 255. Accordingly, it is my reading of the law that a charge of larceny (petit or grand depending on the value of the property) is not precluded in the situation you describe simply because a person may have title to the property in question. If the "taking" is done without authorization and the other elements of larceny are present, including the necessary mens rea (guilty mind), a criminal charge oflarceny may be appropriately lodged against a person having title to an automobile who, without consent, deprives a repairman with a lien of possession of that automobile. See, State v. Marsala, 59 Conn.App. 135, 755 A.2d 965 (Conn. 2000)(Defendant guilty oflarceny after removing vehicle from repair shop with lien); and, State v. Pike, 118 Wash.2d 585, 826 P.2d 152 (Wash.1992)(Theft can occur when owner takes property from another who has lien). In your letter, you also set forth certain "points" that you would like to have addressed ""when
[this Office is] forming [its] reply." Paraphrased, your "points'' are as follows: (1) are the circumstances of the case changed by the addition of ·'material" to the automobile, as opposed to mere service; (2) would the area where the automobile is located when removed, either a common parking lot or a fenced area, make a difference in the case; (3) would the fact that the keys are left in the automobile and the automobile has been left in a "'pick up" area for the customer be relevant to the case; (4) would the time at which the automobile is removed, either during business hours or after hours, make a difference in the case; (5) does it matter whether the owner or his designee or agent requested the repairs; (6) is it relevant that the customer disputes the bill because of a

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§ 16-13-30 does not define larceny, but rather establishes a three tiered punishment schedule based on the value of the goods taken

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Captain Brown
Page 3
January 26, 2001

perception that the repair was necessitated by previous repairs performed by the business: (7) can the owner be forced to return the automobile until payment is made; and, (8) can prosecution be carried out after payment has been made by the owner to satisfy the existing debt ("or is prosecution limited only to payment OR prosecution?").

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Your points, particularly those numbered ( 1) through (5), amount to factual distinctions which must be considered in determining whether a particular situation warrants criminal charges. Each point, along with any other relevant facts, should be considered by law enforcement when determining whether to pursue a warrant, the magistrate or municipal judge in determining whether to issue a warrant and a solicitor in making prosecution decisions. Whether an owner can be forced to return an automobile until the debt is satisfied depends on the manner in which possession of the vehicle was obtained by the owner. Voluntary relinquishment of possession to the owner extinguishes any mechanic's lien that may be on the property. Welcome Home Center. Inc. v. Central Chev. Co., Inc., 272 S.C. 166, 249 S.E.2d 896 (1978). However, removal of the automobile from the repairman's place of business without consent entitles the repairman to have the automobile restored to his possession for the purpose of enforcing his lien. Bouknight v. Headden, 188 S.C. 300, 199 S.E. 315 (1938). 2 As to point (8), while an owner's payment of the obligation is certainly a factor to be considered in making a prosecution decision, I would caution against conditioning prosecution on payment of such a debt. Such action has long been held to violate public policy. Baker v. Hornik, et al., 57 S.C. 213, 35 S.E. 524 (1900); See also, Whitlock v. Creswell, 190 S.C. 314, 2 S.E.2d 838 (1939). In conclusion, I would suggest that you seek advice directly from your local Solicitor's Office with regard to charging decisions in these and any other cases in which you have questions. This letter is an informal opinion only. It has been written by a designated Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General and not officially published in the manner of a formal opinion.

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Assistant Attorney General
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2

Return of the automobile could be sought by the repairman through a civil action such as one for "claim and delivery" pursuant to SC Code Ann. §22-3-1310 et seq.