Jason Branham and Patrick McCabe, J.
It may surprise many to know that the development of the location of the North Carolina-South Carolina border is quite interesting. The original boundary agreed upon by the two provinces and approved by the British Monarchy in 1735 was comprised of two straight lines. The current boundary and its shape are the result of surveyors who missed the mark in centuries past and attempts to "right the wrong" in an equitable way1 Recent joint state efforts to "clarify" the boundary's location are intended to permanently resolve remaining uncertainties. The results of these efforts involve changes to understandings, perceptions and beliefs as to the state in which all or part of multiple parcels of land are situated. These changes have ramifications to those with claims to or interest in those parcels. Each state enacted its own respective and varying sets of laws attempting to address those impacted. In this article we attempt to describe and explain some of those laws in South Carolina and how they are influencing areas important to interest holders and legal practitioners. Please bear in mind that this article is written in general terms and may not contain all the specific requirements or provisions of authority. It is intended as a guide only and does not constitute tax advice. Furthermore, it should be noted that this article does not represent official Department of Revenue policy.
The North Carolina-South Carolina Joint Boundary Commission
South Carolina spent 26 years and more than 10 million dollars in a boundary dispute with Georgia, which was resolved by a U.S. Supreme Court decision in 1990.2 Shortly thereafter, in the early 1990s, Duke Energy offered lands to each of the Carolinas along their shared state line. This resulted in each state taking a closer look at the exact location of the boundary. Seeking to avoid a repetition of the previous South Carolina-Georgia experience, the Carolinas entered an agreement in 1993 to cooperate in the re-establishment and clarification of the boundary.3 It is important to note the use of the terms "re-establishment" and "clarification" of the boundary. The work is intended and legally positioned as an accurate identification of the boundary line in and where it already was. The official result is that no movement of the line occurred at all. To portray the result as an agreement to a new boundary location could have invoked the need to obtain Congressional approval pursuant to federal law.4 The North Carolina-South Carolina Joint Boundary Commission oversaw the work to clarify the location of the 334-mile-long boundary and deemed it complete upon approval in May 2013. Officials recorded new plats depicting the mutually-agreed boundary location in the office of the Register of Deeds (or Clerk of Court, if applicable) in each county along the boundary. The perceived location showed no variation in many areas and in other areas it varied by as much as hundreds of feet. According to the South Carolina Office of Geodetic Survey "1,640 different parcels of property were impacted with this project."5
New duties of the county land records custodian
Enacted in 2016, section 30-5-270 of the SC Code of Laws creates a means by which impacted border properties are identified individually in the public record and labeled as such. The section applies to real property "previously believed to be located in whole or in part in North Carolina and which is determined to be located in whole or in part in South Carolina as a result of the boundary clarification legislation."6 It mandates that the county land records custodian (i.e. Register of Deeds or Clerk of Court) of each affected county record a "Notice of State Boundary Clarification" (hereinafter: "Notice") as to each "affected land." Each such Notice must be indexed in the same way that a deed for each parcel would be indexed.7 Affected land is defined as "real property of an owner whose perceived location has been clarified pursuant to the boundary clarification legislation."8 This author interprets this to mean any parcel that is now, in whole or in part, in a state different from what was previously perceived as evidenced by county records and also any parcel that either has the boundary crossing over it or forming part of the parcel's boundary. The content and format of the Notice are specified within the Code section.9 The records custodians were required to record and index the Notices by January 1, 2017.
An informal survey by the authors of this article of the 11 South Carolina boundary counties was performed shortly before and after January 1, 2017, and found significant variation in the awareness, understanding and compliance regarding these new duties among county records custodians. Any failure to fully comply in a timely manner has a direct impact on the statutorily-intended process set forth in SC Code § 29-3-800, which was enacted in 2016 and is described below.
New provisions for lien foreclosures upon affected lands
Section 29-3-800 seeks to ensure that an interest holder in affected land that is being foreclosed upon by a lien holder receives notice that the land was affected by the boundary clarification. The attorney for a foreclosing lien holder must file (1) a copy of the Notice of Boundary Clarification (previously recorded by the county land records custodian) with the court as part of the foreclosure case; and (2) an Attorney's Certification that (a) a title search was performed and (b) that all parties having a recorded interest in the property have been served with notices as follows:
Cases pending as of January 1, 2017: • Must serve a copy of the Notice and pleadings upon any interest holder identified in the Notice or known to have an interest in the property (if not already a party to the case) by certified mail or overnight delivery to the property address and all known addresses of said interest holder(s). The interest holder must also be notified that it/he/she has 30 days from mailing date to file and serve an Answer to the Plaintiffs pleadings.
• After 30 days, if a non-party interest holder has failed to file a response to the foreclosure, the attorney shall certify such to the court (in most mortgage lien foreclosure cases, this would be a second type of attorney certification11 ). The served non-parties will then be bound by the judgment. However, they must continue to be served copies of any hearing notices and notices of sale.12
Cases commenced on or after January 1, 2017: • Must serve a copy of the...