Frequently Asked Questions

Thanks for checking out our law firm!  We are licensed to practice in the State of South Carolina and only take on real estate matters involving South Carolina real estate.  We get the following questions frequently and hope the generalized answers provided here are informative.  This is just general information, however.  We are not providing legal advice relative to any specific set of facts or circumstances you may have.  The information provided is not intended to create and does not create an attorney-client relationship.

Do I have to hire an attorney to close the sale of real property located in South Carolina?

Yes. The South Carolina Supreme Court has declared that many tasks performed in conjunction with real estate closings are the “practice of law” which, even when performed by laypersons, must at least be “supervised” by a licensed SC attorney. Such tasks include title searches and examinations, document preparation including but not limited to deeds and mortgages, document review and correction, document execution, and recording documents on the public record, including proper indexing of those documents. This has been a somewhat contentious issue historically, as most other states do not require that attorneys close or supervise real estate transactions. The South Carolina Supreme Court, however, has chosen to emphasize the role attorneys play in protecting the rights of the parties and the public in real estate transactions.

Does the attorney I hire have to be present for the closing?

Yes. Either the attorney you have hired, or an attorney working for him or her, must actually attend and preside over the closing.

If I hire an attorney for the closing, isn’t he or she my attorney?

Yes and No. In a typical residential real estate closing, one attorney represents multiple parties (e.g. Buyer, Seller, Lender, Title Insurance Company). Multiple representation of this kind is permissible so long as any conflicts of interest, and the potential for conflicts given multiple representation: a) are fully disclosed to all parties, b) do not materially impair the attorney’s ability to competently represent each party, and c) all parties to be represented agree after having been consulted on the topic. In transactions involving such multiple representation, there is no confidentiality between the attorney and any one party to the exclusion of any other party.

Who chooses the closing attorney?

Buyers have an absolute right to choose who their attorney will be in most residential real estate transactions in South Carolina involving a loan according to the SC Consumer Protection Code. Buyers who insist that this attorney not represent any other party, will generally incur greater expense because other parties are typically in a position to pass the expense of their separate counsel along to the Buyer. Still, Lenders subject to the attorney preference law may not dictate the use of a particular attorney.

Buyers—what does the closing attorney do for them?

  • Performs a “title search” for defects that would negatively affect the buyer’s ownership of the real estate.
  • Prepares closing documents including a closing statement of all monies collected and disbursed.
  • Coordinates services with real estate agents, insurance agents, inspectors, and other service providers that will be paid through the closing.
  • Collects closing costs and expenses incurred by the buyer in accordance with contracts and disburses funds accordingly.
  • Performs the closing to explain the process and answer any questions the buyer may have.
  • Records documents (e.g. a deed) on the public record (Register of Deeds or Clerk of Court) to protect the buyer’s interests in the real estate.

Sellers—what does the closing attorney do for them?

  • Prepares a Deed to convey title to the real estate from Seller to Buyer.
  • Collects the sale price agreed upon from the buyer.
  • Disburses monies to seller’s service providers and disburses net sales proceeds to seller as shown on the closing statement

Lenders—what does the closing attorney do for them?

  • Reviews loan documents for compliance with applicable law and title insurance guidelines.
  • Completes loan documents, including the “legal description” of the real estate.
  • Collects monies owed to the lender, and disburses monies released by the lender pursuant to contract terms, loan terms, and written closing instructions.
  • Records documents (e.g. a mortgage) on the public record (Register of Deeds or Clerk of Court) to protect the lender’s interests in the real estate.

Title Insurance Companies—what does the closing attorney do for them?

  • Researches the public record for defects in title.
  • Provides title insurance products to lender which meet lender’s requirements.
  • Recommends title insurance products to buyers to insure against title defects and disputes.
  • Collects title insurance premiums for insurance products requested by the parties.
  • Issues title insurance policies purchased by the lender and buyer that meet title insurance underwriting guidelines.

Who pays the real estate attorney?

Generally speaking, each party pays the real estate closing attorney for the services performed on that party’s behalf. Almost everything in a real estate transaction is negotiable, however, and many times one party agrees to pay some or all of another party’s fees. All closing fees, and the parties responsible for paying those fees, should be disclosed on the closing settlement statement. Typically, buyers pay an attorney fee for the closing, a title search and title examination fee, a title insurance binder fee, a premium for lender’s title insurance, and also for any “owner” policy desired, along with other various lender fees and any miscellaneous costs for courier fees, governmental recording fees, etc. Sellers customarily pay for deed preparation and the deed recording fees collected by the government (“deed stamps” now called “transfer tax”). Lenders usually require title insurance coverage from the closing attorney (as agent for the title insurance company) to be paid for by the borrower / buyer. Title insurance companies pay producer agents (usually the closing attorney) a commission on any title insurance products purchased by the parties.

What about buying property at the delinquent tax sale?

TAX DEEDS DO NOT CONVEY “CLEAR TITLE” IN SOUTH CAROLINA. As such, persons considering purchasing property at any County’s delinquent tax sale should beware. ANYONE considering purchasing a property at a tax sale should consult with an attorney who is familiar with real estate and the tax sale process and consider having the attorney conduct a title search to determine the status of title BEFORE deciding to bid.

What if my property is going to be sold at the tax sale?

Defaulting taxpayers / property owners generally have one year after the sale date to “redeem” the property by paying all amounts due, including all penalties and interest and fees, to the Delinquent Tax Collector. It is CRITICAL to contact the appropriate County Office to find out the absolute deadline for redemption payment

What about buying property at a foreclosure sale?

Buyer beware. A foreclosure suit only clears the mortgage or other lien being foreclosed, and any junior or subordinate liens where the holders of those liens have been named as party defendants in the foreclosure suit (generally “junior” or “subordinate” liens are those created later in time than the one being foreclosed). If there are any liens that have superior priority to the lien being foreclosed, the property is sold SUBJECT TO to those superior liens and the property is still encumbered by those superior liens (“superior” liens are liens recorded or which have attached to the property BEFORE the one being foreclosed, generally speaking. Real property taxes are always a superior lien). Failure to pay any superior priority lien(s) could result in a new foreclosure action by the holder(s) of such lien(s). Additionally, if there are any judgment creditors whose liens have attached to the real estate but who were not named as party defendants in the foreclosure action, the foreclosure does not clear those liens and the liens remain attached to the property. ANYONE considering purchasing a property at a foreclosure sale should consult with an attorney who is familiar with real estate and the foreclosure process and should consider having the attorney conduct a title search to determine the status of title BEFORE deciding to buy at a foreclosure sale.

What if my property is in foreclosure?

You should contact an attorney as soon as possible to get specific legal advice about the process and your legal rights.

I received a letter telling me I need to send money to get a copy of my deed—is this right?

We’ve gotten quite a few calls from people wanting certified copies of the deeds to their homes. Typically callers have received some “official” mail warning about bad consequences for not being able to prove ownership. The “cure” is money, of course. The sender usually promises to provide a “certified” copy of a deed for a “low” fee ranging from tens to hundreds of dollars. These scams prey on the uninformed. Property ownership is a matter of public record in South Carolina. Anyone with access to the internet may search online and print copies of deeds for properties in many counties for free. Some counties charge an online access fee. For property in counties where the recording office is not online, anyone may visit those offices in person and search for and obtain copies of deeds. Copies are usually available for a small copy charge, and ”certified” copies may cost more. More importantly however, deeds which have been recorded in the appropriate county office where property is located give notice of ownership to the world whether owners have copies or not.

There were times when people bought property on a handshake. While those times are gone, our firm strives to make every closing feel that easy.