(A) Any mortgage or other instrument conveying an interest in or creating a lien on any real estate, securing existing indebtedness or future advances to be made, regardless of whether the advances are to be made at the option of the lender, are valid from the day and hour when recorded so as to affect the rights of subsequent creditors, whether lien creditors or simple contract creditors, or purchasers for valuable consideration without notice to the same extent as if the advances were made as of the date of the execution of the mortgage or other instrument for the total amount of advances made thereunder, together with all other indebtedness and sums secured thereby, the total amount of existing indebtedness and future advances outstanding at any one time may not exceed the maximum principal amount stated therein, plus interest thereon, attorney's fees and court costs. It is not necessary that the mortgage state as part of the maximum principal the amount of any deferred, accrued, or capitalized interest or discount of any nature or kind, whether the rate of interest or discount is fixed or variable pursuant to an alternative mortgage loan transaction as defined in Section 37-1-301(5), and the lien of the mortgage as to all that interest or discount shall have the same priority as the principal; provided, however, that the recorded mortgage discloses that interest or discount will be deferred, accrued, or capitalized. However, the lien of a person who has furnished labor, services, or material in connection with the construction of improvements to real property is superior to the lien of a recorded mortgage as to disbursements made after filing of the notice of the mechanic's lien required by Section 29-5-90 and service of the notice on all prior recorded mortgage holders. Service of the notice on prior recorded mortgage holders must be made pursuant to Rule 4 of the South Carolina Rules of Civil Procedure. The priority of the mechanic's lien extends only to the mortgage disbursements made after the filing of the lien and service of the notice on all prior recorded mortgage holders.

(B) Any mortgage or other instrument which by its terms creates an interest in or a lien upon any real property interest held by a gas or electrical utility or electric cooperative, securing existing indebtedness or indebtedness to be incurred in the future, is valid from the day and hour when recorded. It affects and is prior to the rights of all creditors and purchasers for valuable consideration without notice and all liens except liens of record prior to recordation of the mortgage, regardless of whether there is an actual debt outstanding at the time of recordation of the mortgage, to the same extent as if the future indebtedness were incurred as of the date of the execution of the mortgage or other instrument for the total amount of indebtedness thereafter incurred, together with all other indebtedness and sums secured thereby. However, the total amount of existing indebtedness and future indebtedness at any one time may not exceed the maximum principal amount stated therein plus interest thereon, attorney's fees and court costs, and the mortgage or other instrument must contemplate that future indebtedness may be incurred. The mortgage or other instrument shall remain a valid lien and effective as record notice thereof until satisfied or released of record even though there are periods during which no indebtedness is outstanding thereunder.

Notwithstanding the above provisions, the lien of a person who has furnished labor, services, or materials in connection with the construction of improvements to real property is superior to the lien of a recorded mortgage as to indebtedness actually incurred after filing of the notice of the mechanic's lien required by Section 29-3-90 and service of the notice on all prior recorded mortgage holders. Service of the notice on prior recorded mortgage holders must be made pursuant to Rule 4 of the South Carolina Rules of Civil Procedure. The priority of the mechanic's lien extends only to the mortgage indebtedness actually incurred after the filing of the lien and service of the notice on all prior recorded mortgage holders.

HISTORY: 1962 Code Section 45-55; 1952 Code Section 45-55; 1942 Code Section 8712-2; 1934 (38) 1475; 1960 (51) 1731; 1982 Act No. 466, Part II, Section 18; 1988 Act No. 635, Section 1; 1993 Act No. 141, Section 2.

Editor's Note

1993 Act No. 141, Section 5, effective June 14, 1993, provides as follows:

"SECTION 5. The provisions provided for gas or electrical utilities or electric cooperatives in Sections 29-1-10, 29-3-50(B), 29-3-80, and 29-3-90 of this act shall be construed as cumulative authority and shall not be construed to impliedly repeal any existing laws affecting mortgages and liens of gas or electrical utilities or electric cooperatives."