(A) When an owner or lessee of real property seeks to improve, repair, or maintain his property, and the property is so situated that it is impossible to perform the improvements, repairs, or maintenance without entering adjoining property and permission to enter the adjoining property has been denied, or unreasonable conditions have been placed upon the entry, the owner or lessee seeking to make the improvements, repairs, or maintenance may petition the circuit court for a license to enter the adjoining property for the purpose of performing the improvements, repairs, or maintenance. For the purpose of this section improvement, repair, or maintenance does not include new construction on a site without a preexisting structure.

The property owner over whose property a license is sought to be granted by the court shall be joined as a party respondent to the action seeking a license and the case shall be bound by the South Carolina rules of civil procedure and shall be heard by the court sitting in equity without a jury.

(B) The petition may not be filed until after a good faith effort to obtain permission to enter the adjoining property has been made. A good faith effort to obtain permission for entry is considered to have been made if the request describes the nature and manner of the requested improvements, repairs, or maintenance, solicits specific dates for entry, and:

(1) the petitioner can present evidence of an actual request and denial of entry, or the imposition of unreasonable conditions upon entry; or

(2) if the petitioner requests entry in writing and provides notice of the respective rights of parties under this section by certified mail, return receipt requested, to the owner of record according to the tax records for the county in which the adjoining property is located, a period of forty-five days has expired since the written requests for entry was made, and the adjoining property owner has not responded to the request in writing. The court may waive the forty-five day period if service upon the owner of record has been accomplished and if the court finds the petitioner's property will suffer irreparable waste from imposition of the forty-five day period.

(C) The petition must be accompanied by affidavits or other evidence setting forth the circumstances which make the entry necessary, the dates the entry is desired, and a description of the improvements, repairs, or maintenance which will be accomplished.

(D) After an evidentiary hearing based upon a motion for immediate relief, the license may be granted if the court finds that:

(1) the entry upon the adjoining property does not irreparably or unreasonably damage the adjoining property;

(2) the grant of license is not an unreasonable encroachment or burden upon the adjoining property; and

(3) the license is reasonably necessary for the improvement or preservation of the petitioner's property.

(E) If the court grants the license, it shall specify:

(1) the nature of the improvements, repairs, or maintenance to be accomplished;

(2) the manner in which the improvements, repairs, or maintenance will be accomplished;

(3) the dates upon which the license begins and ends;

(4) the amount of compensation to be paid to the property owner over whose property the license is granted;

(5) that the owner or lessee seeking the license must provide to any person performing improvements, repairs, or maintenance a copy of the court order setting forth the specific conditions of the license; and

(6) any other terms and conditions the court considers appropriate to minimize disruption to the adjoining owner's or lessee's use and enjoyment of the property over which the license is granted.

(F) Once the authorized improvements, repairs, or maintenance are commenced, they shall proceed expeditiously. The license shall terminate upon the earlier of the completion of the improvements, repairs, or maintenance set forth in the license or the expiration of the license. The licensee shall in all respects restore the adjoining land to its condition prior to entry and is liable for actual damages occurring as a result of the entry including, but not limited to, physical damage to the adjoining property and loss of revenue.

(G) The court may require that an appropriate bond or other security be posted by the licensee and shall require the licensee to provide adequate liability and workers' compensation insurance to indemnify the adjoining property owner and lessee against claims arising from the work authorized by the license.

(H) Except in the case of wilful, wanton, or reckless misconduct, the adjoining property owner or lessee upon whose property entry is authorized under this section is immune from liability from all suits, claims, and causes of action arising from the entry and work authorized by the license.

(I) The right of entry provided for in this section applies only to portions of the adjoining property including, but not limited to, driveways, patios, sidewalks, and other unimproved land. It does not authorize entry into any buildings on the adjoining property.

HISTORY: 1998 Act No. 348, Section 1.