SC Lawyer, March 2007, #2. To Fee or Not to Fee: Two deed drafting traps created by recent changes in South Carolina law.

• Author: By Paul W. Dillingham and Claire T. Manning

South Carolina Lawyer

2007.

SC Lawyer, March 2007, #2.

To Fee or Not to Fee: Two deed drafting traps created by recent changes in South Carolina law

South Carolina LawyerMarch 2007To Fee or Not to Fee: Two deed drafting traps created by recent changes in South Carolina lawBy Paul W. Dillingham and Claire T. ManningThe S.C. Supreme Court emphatically states that drafting deeds is the practice of law. Doe v. McMaster, 355 S.C. 306, 585 S.E.2d 773 (2003); State v. Buyers Service Co., Inc., 292 S.C. 426, 357 S.E.2d 15 (1987). There are many excellent reasons for those decisions! Drafting deeds can be a tricky proposition, not for the faint of heart. Lawyers from other states draft deeds that are recorded in South Carolina, creating a wide variety of title defects. Non-lawyers in South Carolina also draft deeds that somehow manage to be recorded, often making it difficult to determine whether clear title passed. Drafting a deed by a South Carolina licensed attorney no longer involves merely opening his or her law firm's standard general or limited warranty deed form on the computer and paying attention to the minutia of the parties' names, the legal description, the derivation, the tax map number and the grantee's address. That task is difficult enough standing on its own. But two legal issues created by fairly recent changes in the law must now be considered, and deed forms may need to be reviewed and revised in light of these developments. These developments emphasize once again that South Carolina lawyers should draft South Carolina deeds.

The first development involves the interplay between a 1994 statutory change and a 2004 S.C. Court of Appeals case, Hunt v. S.C. Forestry Comm'n, 358 S.C. 564, 595 S.E.2d 846 (Ct. App. 2004). The issue here is the proper method of adding enforceable limiting or "subject to" language in a deed for a seller client. The second development involves a Supreme Court case, Smith v. Cutler, 366 S.C. 546, 623 S.E.2d 644 (2005). This case confused real estate practitioners and complicated drafting survivorship deeds.

A deed is a written document where the owner (the "grantor") conveys the title to real estate to a purchaser (the "grantee"). South Carolina has a statutory form of deeds set out in S.C. Code section 27-7-10. This statute requires two or more credible witnesses and indicates a deed will be valid to convey fee simple title if it is expressed in the following form:

"The State of South Carolina

Know all men by these presents that I, A B, of . . . , in the State aforesaid, in consideration of the sum of . . . dollars, to me in hand paid by C D of . . . County, State of ..., the receipt of which is hereby acknowledged, have granted, bargained, sold and released and by these presents do grant, bargain, sell and release unto the said C D all that (here describe the premises), together with all and singular the rights, members, hereditaments and appurtenances to said premises belonging or in any wise incident or appertaining; to have and to hold all and singular the premises before mentioned unto C D, his heirs and assigns, forever. And I do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend all and singular said premises until said C D, his heirs and assigns, against myself and my heirs and against every person whomsoever lawfully claiming or to claim the same, or any part thereof.

Witness my hand and seal this . . . day of . . . in the year of our Lord . . . and in the . . . year of the independence of the United States of America. " . . . [L.S.]" S.C. Code Ann. § 27-7-10 (1991).

The statutory form is not indispensable according to very old case law. Any form is sufficient if the intention to convey can be ascertained and there is a seal, two witnesses and a description of the property. Navassa Guano Co. v. Richardson, 26 S.C. 401, 2 S.E. 307 (1887); Lorick & Lowrance v. McCreery, 20 S.C. 424 (1884). Additionally, the grantor must be competent, the deed must recite adequate consideration, the signatures must be probated or...