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.
Real Estate Closings
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.
Leases
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.
Real Estate Issues
Sometimes, issues arise that prevent a property owner from holding clear title to their land. For example:
- Heir Property: If a person dies and his/her estate is not properly probated within ten years of the date of death, the property is now commonly referred to as "heir property", meaning the property has passed down to that person's heirs without the proper documentation. An attorney may be able to prepare one or more deeds dividing the property so that each heir has their individual shares. If all heirs are not known or are uncertain, an action to quiet the title may be brought wherein the court determines who are the legal owners of the property.
- Partition Action: When land is owned by multiple owners, and those owners cannot agree as to how the land should be divided, or all of the owners, in cases of heir property, cannot be located, it may be necessary to bring a partition action. In such cases, the court determines how the property should be divided, and in some cases, the court presides over the sale of the property and the distribution of the sale proceeds.
- Quiet Title: When questions arise as to whether an owner has clear title to the property, or as to whether or not adverse claims to the property may exist, it may be necessary to file an action with the court to quiet the title to the property. A quiet title actions is essentially an action against the world, offering anyone who believes that they have a valid claim to the property the opportunity to make their claim. Quiet title actions commonly result from the purchase of property at a tax sale, which leaves the buyer with title to the property that title insurance companies will not insure for a period of time.
- Easements: In cases where a piece of property is landlocked, that is, the property does not touch or have legal access to a public road, it may be necessary to bring an action in court to obtain legal access to the property. In many instances, such an action can be avoided by having an attorney negotiate with adjoining landowners for a deeded easement across their property.
- Burns and smoke inhalation
Foreclosures
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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