SC Lawyer, July 2010, #4. Heirs' Property-A Quagmire for the Unprepared.

• Author: By Tommy Geddings

South Carolina Lawyer

2010.

SC Lawyer, July 2010, #4.

Heirs' Property-A Quagmire for the Unprepared

South Carolina LawyerJuly 2010Heirs' Property-A Quagmire for the UnpreparedBy Tommy Geddings A nice woman comes to your office and asks for a deed to some property that her family has owned. After you explain that lawyers cannot create a deed and can only transfer property from one owner to another, she explains that the land was owned by her great-grandfather and has been passed down through the family. She explains that she and her mother and father live in a family home on the land but want to get a mortgage. The bank has advised them that without a deed, they cannot get a mortgage, so they told her to see a lawyer to get a deed. As you explain the legal process involved in transferring property, it becomes apparent that you have just entered ... The Heirs' Property Zone. This article is intended to serve as a how-to resource to equip attorneys to handle the heirs' property situation rather than a research overview. Please bear in mind that for a more in-depth review of the intricacies of complex issues, a practitioner should conduct further research.

An action to quiet title is normally a common law equitable action to determine the ownership of a parcel of real property. "Normally, an action to quiet title to property is an action in equity." Clark v. Hargrave, 323 S.C. 84, 86, 473 S.E.2d 474, 476 (Ct. App. 1996) cited in Jones v. Leagan, 384 S.C. 1, 10 681 S.E.2d 6, 11 (S.C.App. 2009). If the complaint seeks a claim based on adverse possession, that would change the action to one at law. Frazier v. Smallseed, 384 S.C. 56, 682 S.E.2d 8 (S.C. App. 2009). The actual relief being sought is the final determination whether it is an action at law or in equity but, as mentioned above, this article is not intended to be a review of the status of the law nor the standard of review for appeals.

Most of the case law available deals with the issue of adverse possession and its relationship to an action to quiet title. For purposes of this article, however, there will be no further reference to adverse possession. The focus now will be on the initial pleadings and initial trial only as it relates to title through an heirs' property situation. The following cases can serve as a reference to learn more about the distinction between a quiet title action at law or equity. SeeEldridge v. City of Greenwood, 331 S.C. 398, 503 S.E.2d 191 (S.C. App. 1998) and Lowcountry Open Land Trust v. State, 347 S.C. 96, 552 S.E.2d 778 (S.C. App. 2001).

Heirs' property is a non-technical term often used to describe the situation where someone has died without a last will and testament nor any probate of an estate, and the survivors just continued to operate as if the deceased were alive. As those survivors pass away, their survivors take their place and most of the time everyone knows which part of the land is "theirs" and few problems arise. Oddly enough, many county tax records will allow this unclear ownership chain to continue and will simply send a tax notice to whichever person volunteers and the notice will be sent to "The Estate of X" or "The Heirs of X." This gives the heirs a false sense of security that their ownership has been legally recognized, and it is always a difficult task to explain to heirs that merely paying taxes on the property will never ripen into legal ownership.

Eventually, however, someone will want to sell or mortgage his portion of the property or another event will occur which will require proof of legal ownership. If the last titleholder died more than 10 years ago, opening a new estate is not an option. Fortunately, there is a process for resolving the questions of legal ownership and apportioning the property among the living heirs. This will involve an action for quiet title and most likely a collateral action for partition. These actions may be brought at the same time in a single action.

When bringing a quiet title action, it is best to assert jurisdiction and venue in the county in which the property is located. S.C. Code Ann. §15-7-10. One or more of the heirs should be designated as the plaintiff and all other living heirs should be designated as defendants. It is extremely advisable to have the family members communicate with one another to ensure that all of the defendants understand the nature of the action and that, although technically they are defendants in a legal action, it is a vastly different situation than being sued for damages. Many defendants will become very angry if they receive the pleadings with no warning and will believe someone is trying to trick them or take something from them. All defendants should be encouraged to consult with an attorney if they wish to learn more about the process involved and to receive reassurance that their interests are being protected.

Although it is easy to say that all living heirs should be named as defendants, it is far more difficult in actual practice to accomplish this feat. Depending on the length of time since the death of...