Did a surety bond releasing a South Carolina mechanic’s lien need acknowledgment or proof before recording?

Plain-English summary

Charleston County’s deputy register asked whether a surety bond filed to release a mechanic’s lien could be recorded when it carried only a notary signature. The lien-release statute was silent on witnesses and acknowledgment. The AG concluded that the general recording statute also applied because the bond was an “other instrument” within its terms. It agreed with the office’s reading that the statute was not limited to deeds and real-estate conveyances.

Currency note

This opinion was issued in 2004. 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: Was the lien-release statute’s silence enough to avoid recording formalities?
A: The AG said no. It applied the separate general recording statute to the surety bond.

Q: Did the general statute reach documents other than deeds?
A: Yes. The AG treated a mechanic’s-lien surety bond as an “other instrument” under Section 30-5-30.

Q: What did the recording office require?
A: The request described the office’s policy of requiring witnesses and acknowledgment or proof. The AG agreed that Section 30-5-30 applied to the bond.

Background and statutory framework

Section 29-5-110 allowed a lien to be released through a written undertaking and security but did not itself state recording formalities. Section 30-5-30 addressed acknowledgment or proof before recording a deed or other written instrument. The AG applied the latter to the bond.

Citations

• Section 29-5-110
• Section 30-5-30

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-30-2004/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04fmarch30bozman.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsn.R

March 30, 2004

ATIDRNEY GENERAL

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The Honorable Elaine Bozman
Deputy Register Mesne Conveyance
County of Charleston
2 Courthouse Square
Charleston, South Carolina 29402-0726
Dear Ms. Bozman:
In a letter to this office you indicated that an attempt was made to record a surety bond pertaining to a mechanic's lien signed by a plaintiff with only a notary. lt is my understanding that such bond was prepared pursuant to the provisions ofS.C. Code Ann. Section 29-5-110 (Supp. 2003) which allows for the release of a mechanic's lien upon the filing of a written undertaking and security. Section 29-5-110 is silent as to any requirements regarding witnesses or acknowledgment of probate. You indicated that it has always been the policy of your office to require two witnesses and an acknowledgment or probate. You referenced S.C. Code Ann. Section 30-5-30 (Supp. 2003) as support for such requirement. Such provision states:

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Except as otherwise provided by statute, before any deed or other instrument in writing can be recorded in this State, it must be acknowledged or proved by the method described in (A) or (B): (A)( I ) the execution of the deed or other instrument must be first proved by the affidavit ofa subscribing witness to the instrument, taken before some officer within this State competent to administer an oath ... (B) A deed or other instrument must be signed by the grantor, mortgagor, vendor or lessor and the signing must be acknowledged by the grantor, mortgagor, vendor, or lessor in the presence of two witnesses, taken before some officer in this State competent to administer an oath.... According to your letter, when the attorney attempted to record the referenced surety bond and your office referenced the requirements of Section 30-5-30, it was asserted that such provision applies only to real estate or conveyances.

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PoSTOFl'JCEBoX 11549 • COUIMBV.,S.C.29211·1549 • TELEPHONE:803-734-3970 • FACSIMILE:803-253-6283

Ms. Bozman
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March 30, 2004

A prior opinion ofthis office dated November 3, 2000 referenced the requirements of Section 30-5-30 as to the prerequisites for recording of a power of attorney. Therefore, the applicability of Section 30-5-30 is apparently not limited to deeds or similar conveyances. In my opinion, you are correct in your interpretation regarding the applicability of Section 30-5-30 to a surety bond pertaining to a mechanic's lien inasmuch as such would come within the definition of "other instrument" as used in such provision.

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Charles H. Richardson
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General