Down and Dirty With Dirt Law
| Publication year | 2022 |
| Pages | 36 |
By W.T. “Tommy” Geddings, Jr.
My great-grandfather, Charlton DuRant, was the first lawyer to practice in Manning, South Carolina. In his day, very few attorneys specialized in a specific field of law. Most did not even go to a law school and, like Charlton DuRant, "read the law" (meaning that they apprenticed with an attorney and read law books on their own). Most attorneys had to handle many different types of cases, so it was not uncommon for litigation attorneys to have experience in real estate law and procedures, and it was common for real estate attorneys to have some familiarity with litigation issues. Outside of large cities, most attorneys had a wide range of experience and knew a little about a lot. As the practice of law has become more targeted and specialized, many family law practitioners know very little about real estate law and closing procedures. Similarly, real estate attorneys are often not exposed to litigation, especially to the intricacies of family court litigation.
Now, we all learn a little bit in law school, but within a few years lawyers tend to forget what they learned if they do not deal with the issues on a regular basis. But the truth is that whether a litigator is handling a family court matter or is in circuit court or probate court, the litigator is very likely going to encounter property transfer issues. The purpose of this article is to provide a refresher and practical guidance for non-real estate attorneys, particularly those who handle litigation, for some of the very basics of property ownership and how property is transferred.
In family court matters, the ownership of property is often at issue. While many clients will likely have bigger concerns on their mind (such as child support, separate maintenance and support, and custody issues) and may, therefore, be uncooperative in providing the information you may need, ownership issues should be addressed at the beginning of the case. In fact, even after the parties reach an agreement or the court issues an order, a lawyer has an essential duty to ensure that ownership is properly conveyed.
The basics of South Carolina real estate law
In South Carolina, there are multiple types of deeds and ownership of real property. Because the types of deeds and property ownership carry different rights and duties, practitioners must review the actual deed for the property at issue in the case and not just rely on a client's attempt to describe how it is owned. Given the complexity of these instruments, certainly most clients do not understand the various ownership formats, and a small difference in the deed's wording can make an enormous difference. For example, while most clients believe that the name of the person on a deed makes a large difference in an action for divorce, the fact is that the name on the title makes little difference in terms of equitable division. But in the practical sense of accomplishing division after agreement or court order, the specifics of the title will make a large difference.
Problems seldom arise if the property is titled solely in one spouse's name or is held as by the spouses as tenants in common. But that is not always the situation. For purposes of illustrating issues that family lawyers may encounter, this article will use the following fact scenario:
Albert and Betty were married in June of 1999. They had a main home in Columbia, South Carolina ("Main Home") titled to "Albert and Betty, as Joint Tenants with Right of Survivorship." Albert and Betty have a mortgage on the Main Home through Echo Bank. They also have a home on Lake Wateree ("Lake Home") titled to "Albert and Betty, as tenants in common, for and during their joint lives and upon the death of either of them, then to the survivor of them, his or her assigns, forever, in fee simple." On the Lake Wateree...
To continue reading
Request your trial