In order to transfer property, or give someone an interest in property, it is necessary to have a deed describing the property, properly signed, witnessed and notarized, and recorded in the office of the register of deeds for the county in which the property is situated. Having an attorney prepare the deed ensures that the property is described correctly, signed, witnessed and notarized according to South Carolina requirements, and properly recorded in the correct office.
Most real estate closings involving the sale of property are initiated by the signing of a contract between the seller and buyer. The contract should be carefully prepared to ensure that all of the terms agreed to by the parties are in writing. When a closing involves a real estate agent, the agent will usually prepare a contract, but in transactions where a real estate agent is not used, it is highly recommended that the contract be prepared by an attorney.
In South Carolina, all real estate closings in which the property is mortgaged are required to be supervised by a licensed South Carolina attorney. This includes closings involving the sale of property and closings involving the refinance of an existing mortgage. The borrower always has the right to choose their own closing attorney. The responsibilities of the closing attorney include examining title and certifying title to the lender, obtaining title insurance, if required, reviewing closing documents prepared by the lender, preparing a settlement statement, explaining loan documents to the borrower and ensuring all documents are executed properly, returning closing documents to the lender, and recording deeds and mortgages. The seller in a real estate transaction may also be represented by the attorney of their choice, who will represent the seller's interests at closing, review seller documents, and prepare the deed.
Some closings are cash sales that do not involve a mortgage. The use of an attorney in these closings is highly recommended as well, as the attorney will examine title, prepare closing documents, and ensure that all documents are executed and recorded properly. Some closings are financed in whole or in part by the seller, and financing documents, including a note an mortgage, should be prepared by an attorney.
When renting property, it is recommended that all the terms of rental be written into a lease agreement signed by the landlord and the tenant. Tenancies that are not governed by a written agreement are governed by South Carolina Landlord-Tenant law, and are generally month-to-month in nature. The lack of a proper lease agreement can cause trouble in situations where one of the parties is not upholding their end of the agreement. A lease agreement properly drafted by an attorney can avoid many issues in the event of conflict.
In cases where the owner of property has financed the sale with a note a mortgage, and the buyer has defaulted on making payments, it may become necessary for the seller to foreclose on the mortgage. The foreclosure process involves making a proper demand for payment, and if payment is not rendered, filing the proper suit in court to facilitate the sale of the property in order to recover the debt owed. It is highly recommended that an attorney handle this process to ensure that it is done properly. This is the same process that is used by banks and other lenders when borrowers default on the terms of their note and mortgage. From the perspective of the owner of property facing foreclosure, an attorney can often assist in negotiating a settlement with the holder of the mortgage so that foreclosure does not become necessary.
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