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