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We represent sellers and purchasers in connection
with the preparation and negotiation of contracts to purchase
and sell real estate, examination of the title to properties and
assist our clients in the closing and settlement of these transactions.
It is our goal to guide you through the process and prevent unnecessary
complications.
Click here for Real Estate Brokers Legal News
Why Residential Real Estate Transactions
Require Legal Services
The sale or purchase of a home by the average
person is usually the financial transaction of a lifetime. Legal
obligations are involved from negotiating and signing a proper
purchase and sale contract, examination of the title, evaluation
of the importance of any title defects, possible refusal of one
party or the other to comply with the contract, down to the closing
statement, delivery of documents and recording of the deed and
other papers.
Each buyer or seller should be represented by
an attorney, be fully informed and know the answers to questions
such as these.
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Does the sales contract
to be signed by buyer and seller cover every matter desired
or contain any clauses that might work against them?
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Will the property be
the same at time of transfer as it was at contract signing?
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Has a survey of the
property been made and is a complete detailed and accurate plat
available?
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Is Title Insurance available
and/or necessary?
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Are there any title
problems or defects? How important are they? Will they affect
your title to the property? Will you be able to sell the property?
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Are possible assessments,
liens, easements, or restrictions known?
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Are there zoning requirements?
How do the restrictive covenants affect your use of the property?
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Are all funding, pay-off
and closing details under control? Are the closing documents
properly prepared?
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Does the attorney participate
in every step of the transaction?
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Does the attorney personally
discuss and counsel with the client about his needs and problems,
and all details of the transaction?
Residential Real Estate Services and Fees
The fees of our office are based upon
the work performed and the responsibility taken.
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Pre-Contract.
All legal services prior to or in negotiating a contract of
sale between Buyer and Seller are rendered on an hourly basis,
adjusted for a variety of factors
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Post-Contract.
A.
Hourly Fee.
Services to be rendered on an hourly fee are quoted, but the
exact fee will not be known until completion of the work. Progress
billings will be rendered, but payment may be deferred until
closing.
B.
Fixed Fee.
Since clients often want to know the precise amount of our charges,
services will be rendered after signing of the contract of sale
and will be billed at the quoted amount specified in our letter
confirming representation.
The fixed fee schedule does not include
handling unusually matters such as complications caused by any
of the following:
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A. Contract negotiations.
Early and late possession
B. Private Sales Unusual land trust transactions
C. New construction Estates
D. Condominium document defects Litigation
E. Escrow closings Installment
sales
F. Unusual title exceptions Divorce settlements
G. Default or non-compliance Gift or estate tax issues
H. Non-cooperation by other parties Unusual income tax issues
I. Payment is normally due at closing.
J. Engagement. Representation normally will commence
after an interview with the client or client’s
agent.
Helpful Hints in Connection With Your
Closing
The following information may or may not
be applicable to your particular transaction. If you have any
comments or questions regarding the specific applicability of
any of this information, please do not hesitate to contact us.
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In the event that your
purchase is contingent upon financing and you do not have confirmation
of your loan within the time provided for in your Contract of
Sale, you should notify the seller in writing by certified mail.
Please inform us promptly if you do not obtain financing.
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For residential purchases,
you should arrange for homeowner’s insurance to be effective
on the closing date (or date of possession if earlier). Note:
If you are purchasing a home during hurricane season please
check with your insurance agent for any restrictions waiting
period that may apply. For your protection, care should be taken
to obtain coverage in an amount at least equal to 80% of the
insurable value of the residence (normally the replacement value,
excluding the lot and foundation), to void the possibility of
becoming a co-insurer. The insurance value is not always directly
related to the purchase price and you should discuss this with
your insurance agent.
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If a loan is involved,
you will be required to provide your lender with a homeowner’s
insurance policy in at least the amount of the mortgage from
an acceptable company at or prior to the closing, with evidence
that the premium has been paid for the first full year. Normally,
an insurance binder is not acceptable. We will be glad to provide
the correct mortgagee information to your insurance agent.
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If you are purchasing
a condominium, after the first year the condominium association
will normally as part of your assessment provide fire and extended
coverage on the unit and community areas and we will obtain
an insurance certificate prior to closing. You will be charged
the amount of the first years premium at closing. However, you
will need to obtain separate insurance on your contents, furnishings
and personal property. This is usually in the form of an HO-6
insurance policy and also provides you with individual liability
coverage.
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If you are renting the
residence, the insurance should include tenant’s liability
on the Owner’s Landlord’s and Tenant’s form.
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If there has not been
a survey of the property you are purchasing or the survey is
NOT a current survey, then we would recommend that you obtain
a survey and plat prior to closing to identify any easements,
etc. that could adversely affect your property. (This is NOT
applicable if you are purchasing a condominium.)
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All monies required at
the time of closing MUST be in the form of a cashier’s
check drawn on a South Carolina bank or savings bank, or a bank
wire transfer of funds into our real estate trust account at
the time of your closing, since all disbursements are made immediately
following the closing. (Wiring instructions are noted below).
Our bar association prohibits the disbursement of any monies
otherwise. Personal checks and out of state checks cannot be
accepted because the bank will not give us credit in our Trust
Account until clearance of these checks.
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Real Estate taxes in
South Carolina are due and payable in arrears on or before January
15th for the preceding year, and will be returned in the name
of the registered property owner as of January 1st of the year
of closing. Normally, taxes are prorated in favor of the purchaser
at the time of closing and the purchaser will be responsible
for insuring the taxes are paid. If you plan to occupy the property
as your primary residence, you will be entitled to a special
tax assessment which must be applied for in the Tax Assessor’s
office. We will provide you with additional information on this
at the time of closing.
If you have any questions about any of the above
information, please contact our Real Estate Department. We are
ready to assist you.
Why Do You Need Title Insurance
You probably have several forms of insurance
already. And you undoubtedly are familiar with insurance coverage
on cars, your life and medical bills. But title insurance?
When you buy a condominium, a home, any other
type of building or even vacant land, you must have a complete
investigation made on every aspect of the property. Or, you may
discover that the property you bought and paid for is not actually
yours at all!!
And even after the investigation, you will need
protection in the event that some point has been missed in the
public records or someone makes a claim on the title to your property.
That protection is a title insurance policy.
What are the Risks That Call for such Protection
Real Estate has such great value and is so basic
a form of wealth that many special laws have been enacted for
its protection – laws so strict and far-reaching that real
estate is more strongly safe-guarded than any other form of property.
As a result, the owner of land has exceedingly
strong rights…and so do the family and heirs of the owner.
But others may have “rights” in
the property, as well. There are mortgages and leaseholder rights…liens
due to unpaid taxes…lien claims to those whom the owner
owes money…mining, oil or air rights…and many others.
Anyone who has such a claim is, in a limited way, a part-owner.
He or she cannot ordinarily be deprived of their interest except
by having the claim settled or released. The property may be sold—even
without their knowledge—but the claim is still good until
satisfied. As a new owner you may know nothing about these risks,
but you are still vulnerable to such claims on your property.
That’s why you need title insurance.
What are some of these Hidden Risks
Some of the most serious risks which are not
revealed by the records or by an examination of the abstract but
covered by a title insurance policy are:
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Marital
Status of Owner Incorrectly Given
Under the law, one spouse may have an interest in property owned
individually by another spouse. An owner may say that He or
she is single, although secretly married or perhaps divorced
in another state—resulting in a claim by a spouse or former
spouse whose existence was not suspected.
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Undisclosed
Heirs
When an owner dies and there is no Will, the courts must decide
who the rightful heirs are. But even then, such a decision by
the court may not be final or binding on any heir who was not
notified of the proceeding. Even under a Will, the court may
have to settle questions of interpretation of the Will. Cases
of this kind include children born after the date of the Will
and heirs overlooked due to incorrect probate proceedings.
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Mental
Incompetence or Minors
A transfer of property by a minor or a person adjudged to be
mentally incompetent raises special problems. To be valid and
binding on a minor or incompetent, the transaction must be made
by guardians or appointed by the court. If a deed or release
was executed by person who was a minor or under mental disability
at the time, the transaction may be voidable or invalid.
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Fraud
and Forgery
The owner may have been fraudulently impersonated. Deeds, releases,
or other documents may be forgeries.
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Defective
Deeds
A deed may have been delivered without consent of the owner
or after his or her death. A document may have been executed
under an expired power of attorney. The name of the grantee
may have been inserted in the deed after its delivery. The officer
of a corporation may not have been properly empowered to act.
In any such case, the action may result in loss of title.
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Confusion
Due to Similar or Identical Names
Despite a careful investigation to prevent it, some confusion
of identity is possible. For example, a person’s title
to his or her land, established thirty years ago, may still
be paid under that name—but the lawsuits, marriages, divorces,
wills and other actions may be under a simplified family name,
such as Johnson, Johnston, Jonson or even Jansen. Or two members
of the same family might have the same name, as in the case
of father and son—and the title may be in one while the
deed is executed by the other having no title.
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Errors
in Records or Clerical Work
A document may be missed in searching. Entries or indexing in
records may be in error. Clerical mistakes are infrequent, but
they do happen.
My Lender has a Mortgage Title Insurance
Policy
On My Property. Why Isn’t that Enough?
Any person or financial institution that lends
money on real estate wants that investment protected. Title Insurance
companies provide mortgage title insurance policies to assure
the lender that the mortgage is a valid first lien protected against
hidden as well as known defects in the title as insured. Such
a policy affords the only way a lender can be certain about the
title which may be acquired in the event of a foreclosure.
Unfortunately, this does not benefit the owner
in the event of a claim, for a mortgage title insurance policy
protects only the lender’s interest in the property, not
the current owner. That’s why Title Insurance Companies
provide owners’ title insurance polices to protect the owner’s
interest in a piece of property. Purchasing your owners title
insurance policy at the same time that the lender orders the mortgage
title insurance policy can result in cost savings to you.
Is Title Insurance Expensive?
The cost of title insurance on any piece of
property you may decide to buy is very small when compared with
the benefit and security it gives. And, unlike other forms of
insurance, there are not annual payments to keep the policy in
force—you pay only one premium. The original premium is
your only cost as long as you or your heirs own the property!
How Should the Title Be Held With Your Spouse
A misconception exists that title to a house
should be held by husband and wife with rights of survivorship
instead of a Tenancy in Common. The answer depends on the facts
and circumstances of each family situation. In other words, what
is right for you might not work for your neighbor.
A tenancy in common exists where more than one
person owns real estate titled in each of their names, much as
a husband and wife might do. Under this form of ownership, each
owner owns an undivided interest in the property. This means that
each is entitled to possession of the entire piece of property
concurrently with the other owner. However, each owner is only
entitled to his or her pro rata share of the value of that property.
Any tenant in common may sell his or her share
or it may pass by will or intestacy at his or her death. One tenant
in common may sell or give at death his or her share of the tenancy
in common to anyone, including the other tenant in common. This
means that the share of one tenant in common will not automatically
pass to the other at death. If there are only two (2) tenants
in common, and one gives his or her share to the other, the other
becomes the outright owner.
There is a way to allow such a interest in property
to pass automatically at the death of the first owner to the survivor.
This is know as a joint tenancy with right of survivorship. Holding
property as joint tenants with rights of survivorship may alter
the parties’ rights in several significant ways.
First, a person holding as a joint tenant with
right of survivorship can not leave his or her interest in the
property to anyone in his or her will. The property, at the death
of one joint tenant, automatically passes to the other tenant.
Secondly, if a person holds title to property
with right of survivorship, he or she may only transfer or sell
a life estate in said property. In other words, the only way to
convey the complete rights of property held as joint tenants with
rights of survivorship is by deed containing signatures of both
or all of the joint tenants.
Aside from these two (2) differences, there
may also be important estate planning issues and consequences
that may significantly affect your choice between the two forms
of ownership. Please consult with us if you have question as to
the proper form of ownership for you.
Getting Ready for Your Closing
The closing or settlement is the procedure by
which the title of property is transferred from the seller to
purchaser. The documents necessary for the closing including the
deed, promissory note, mortgage, settlement statements, etc are
reviewed and explained to the parties by the closing attorney.
All documents are then signed by the seller and purchaser.
The following pointers help assure that the
closing goes smoothly:
FOR THE SELLER
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Let us know whether you will
be present at the closing at our office or whether the closing
will take place by mail. The legal assistant assigned to your
file will advise you in advance of the date and time of your
closing. Please click here for information on the location of
our office.
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Forward us a copy of your
deed, plat and owner’s Title Insurance Policy.
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Provide us with a copy of
your payoff information on any and all loans secured your property,
including:
a. loan account number;
b. lender’s name, address
and telephone number;
c. copy of payment coupon
or most recent account statement;
d. if readily available, a
copy of the first page of your security deed.
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If one of the sellers is unable
to attend the closing, please advise us so we can prepare and
send you a Limited Power of Attorney in advance of the closing.
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Advise us in advance of any
possible problem concerning outstanding taxes, other liens on
your property or whether any work has been done on your property
the last 90 days.
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Furnish us in advance the termite
clearance letter from your termite company.
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Furnish us the legal names
and social security numbers of all sellers of the property.
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If you are a non-resident of
South Carolina, please advise us so we can send you a seller’s
affidavit for South Carolina withholding tax.
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Advise us if the assets being
transferred are business assets and are a majority of the business
assets, based on fair market value.
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Bring a photo ID to the closing.
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Furnish information on your
Home Owners Association including the account number, name,
address and telephone number of the manager of the association.
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If the seller is a corporation,
LLC, Partnership or other entity, contact our office to obtain
instructions on the documents we will need for closing.
Please
click here for information on the location of our office.
- Let us know whether you will be present at
the closing at our office or whether the closing will take place
by mail. The legal assistant assigned to your file will advise
you in advance of the date and time of your closing. Please click
here for the instructions on how to get to our office.
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If one of the purchasers will
be unable to attend the closing, please advise us so we can
prepare and send to you a Limited Power of Attorney in advance
of closing.
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Information on your lender
including the name and telephone of your Bank or Mortgage
Company and the contact person you have been dealing with
on your loan.
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Advise us the name, address
and telephone number of your insurance agent. We must have
evidence the full premium has been paid and your lender must
be shown as a “Loss Payee” under your policy.
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Please advise us if you want
an Owner’s Title Insurance Policy. Please click here for
further information in Title Insurance and why it is important
for you to have this insurance coverage.
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Arrange to bring with you to
closing certified funds drawn on a South Carolina Bank or wire
us the closing funds. The wiring instructions are as follows:
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We recommend you have a survey
of your property.
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Walkthrough Before Closing - Good Idea
It’s a rite of passage that comes with
every real estate sale. Just before closing, the buyer has the
right to walkthrough a property to ensure that everything called
for in the sales contract is in place and working. To get the
best possible walkthrough, a buyer must be prepared. Carry a pencil
and paper to write up any items that need to be finished.
The best place to begin a walkthrough is in
the kitchen. Ovens should heat, refrigerators should cool and
dishwashers should work. Water – hot, cold and mild –
should be readily available. Next, start the clothes washer and
dryer (if included) and let them run as you examine other parts
of the house.
Here is a brief list of other areas to check:
OUTSIDE
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Chimney – Should be straight,
no leaning or bows.
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Flashing – These narrow
metal scam strips used to prevent leaks in roof areas should
be flat and secure. All roof areas should be covered with either
roofing materials or flashing.
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Grading – Water runoff
should be directed away from the home.
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Gutters – Make certain
that gutters are straight and firmly connected. Downspouts and
splashblocks should direct water away for the home.
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Landscaping – Trees,
grass, plants and flowers should be in place at the walkthrough
except when seasonal climates cause planning to be delayed.
Plants and shrubs should be placed two to three feet from the
house to allow for growth and drainage.
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Exterior paint – Exterior
paint should have a consistent color and texture, and thoroughly
cover.
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Shingles – All shingles
should be flat and properly aligned. Bumpy shingles may allow
leakage or hide underlying problems.
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Air conditioning – Air
conditioning should be appropriate for the climate and the volume
of space which must be cooled.
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Appliances – Ranges,
refrigerators, dishwashers, clothes washers and dryers and other
appliances should all work.
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Attic insulation – It
should be flat and evenly distributed.
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Ask your builder about “R”
values. Make certain the attic has adequate ventilation.
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Basement – tiny settlement
cracks are acceptable, but large ones are not. Basement condensation
should be expected for at least a year in a new house.
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Carpets – Carpeting
should lie flat, cover all surfaces and have carefully matched
areas.
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Electricity – Service
should meet local codes and pass the inspection appropriate
for the house. Test all outlets, switches and lights.
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Windows – No cracks
or missing panes. Windows should open and close easily and lock
securely.
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Screens – Window screens
should be in place with no rips or tears.
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Fireplaces – A damper
should be in place and workable.
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Heating – The furnace
should be appropriate for climate and volume space to be heated.
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Inside paint – Check
the finish in all rooms and closets for smoothness and missed
spots.
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Plumbing – All fixtures
should work, with no drips or leaks. Water pressure to all areas
of house should be even.
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Thermostat – Check operation
of thermostat for heating and cooling systems.
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Tile and Vinyl – No bubbles,
ridges, seam gaps or mismatched patters should be found in vinyl.
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Weatherstripping – All
windows should have stripping tightly affixed.
This document is intended for information purposes
only and is not intended for any other purposes.
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Surfside Beach, SC