Can an unlicensed contractor file/and or foreclose on a mechanic's lien in the state of South Carolina?
Question Details: My husband and I entered into a construction contract with a licensed contractor. At the end of construction, which took over a year to do the work (still not complete according to contract), the contractor has filed a mechanics lien and has filed to foreclose on it. In doing research, I discovered that he was presented with a cease and desist order to discontinue building due to an expired/revoked licence(not sure which). He was licenced during part of the building but was still building our house after his license expired. Does he have the legal right to file a mechanicslien/foreclosure?
Under South Carolina Code 40-59-130, a residential builder who does not have a license, or a residential specialty contractor who is not registered as required may not bring any action either at law or in equity to enforce the provisions of any contract for residential building or residential specialty contracting which he entered into in violation of this chapter. South Carolina courts have held that, pursuant to the statute, a builder who is not licensed at the time he enters into a contract for residential construction may not bring an action to enforce the provisions of the contract. Legislative history indicates that this statute is intended to protect homeowners, although sometimes morally challenged homeowners have been known to research a contractor's status and hire the contractor if unlicensed. After doing so, these owners will not pay the contractor knowing that he may not file sit or a mechanics lien action to enforce the payment.
I am not admitted in South Carolina. Honestly, only a Judge can decide if he has a "right" after she/he hears all the facts and reviews the law.
You are not in an easy predicament. But from what I can gleam from your question you have what you think are valid claims for a breach of contract action and valid defenses to the foreclosure action. So I would get a lawyer involved immediately before he acts any further and you have a judgement against you. You may even have a complaint to file with the department of licensing. Good luck.
