The Charleston Post and Courier is reporting that the 5,000-acre residential spread between Interstate 26 and U.S. Highway 176 in Berkeley County near Summerville received the Pinnacle Award from the Home Builder Association of South Carolina.
The size of this project, which supports the Boeing plant and related businesses, is staggering. The Post and Courier reports that it will one day have as many residents as Georgetown and Moncks Corner combined. It will also house as many residents as the current populations of Clemson, West Columbia or North Myrtle Beach (between 16,000 and 20,000). Currently, according to the newspaper, the number of residences is 1,200. At full build-out, the project will encompass 7,000 homes.
The award is for the best master-planned community in the state. It recognizes homebuilders who have achieved the highest standards in customer satisfaction, quality craftsmanship and innovative problem solving.
Just take the trip from Columbia to Charleston to see this huge project. The future of the housing industry in our state is bright!
The symposium will take place this Wednesday 1-7 p.m. and is offered by the Center for Heirs’ Property Preservation and the Aspen Institute Community Strategies Group.
The article indicates the Center has helped families clear more than 200 titles and provides services in Allendale, Bamberg, Clarendon, Colleton, Darlington, Dorchester, Florence, Georgetown, Hampton, Horry, Jasper, Marion, Orangeburg, Sumter and Williamsburg Counties.
If you or your clients have an interest in heirs’ property, this may be an excellent seminar for you.
Thankfully, it has been ten years or more since we’ve heard word “defalcation” used in connection with a South Carolina real estate lawyer. Sadly, we have to use that word in 2020 because a Rock Hill lawyer was arrested in 2019 after funds allegedly went missing from a residential closing.
That lawyer, Thomas Givens, was suspended by the South Carolina Supreme Court on September 25, 2019. Earlier this month, the 67-year old pled guilty for breach of trust and was sentenced to five years in prison, five years’ probation, and restitution.
The closing took place on July 15, 2019 but the $166,000 mortgage payoff was never made. Two months later, Givens was arrested and charged with breach of trust over $10,000. The arrest warrant reads that Givens failed to make the mortgage payoff and does not have the funds.
We usually do not experience defalcations when the economy is good. With the economic downturn that began in 2007, we learned the difficult lesson that attorneys who are prone to dip into their trust accounts often manage to keep the balls in the air as long as closings continue to occur. They typically steal from one closing to fund another. They rob Peter to pay Paul.
Like a game of musical chairs, when the music (and closings) stop, bad actor attorneys no longer have closings to provide funds for prior transgressions, and the thefts come to light.
This time, the economy was good. There are simply no excuses. It is a very sad commentary, and one I hoped not to see again.
Please take a look at this article by Bill Svoboda of CloseSimple entitled “Wire Fraud in the Wake of COVID-19”. The article quotes some industry insiders, including Rick Diamond of our company. Rick was one of our speakers for our recent seminar and often advises real estate lawyers on issues including how to protect client funds.
The article also quotes Tom Conkright of CertifID, one of our office’s solution partners. CertifID has a proven success rate on protecting client funds, including returning client funds that go missing. We highly recommend that you take a look at what CertifID has to offer. Reach out to your agency representative to ask for a demonstration.
But the main purpose of this blog is to remind you to continually educate your clients about wire fraud. Like the victim in this article, many of your clients are pulling up roots and moving to sunny South Carolina. Many of your clients are retirees. The earlier you can give new clients advice about protecting themselves against fraud, the better. Give them advice in bright red, bold print in your engagement letters. Add bright red, bold print warnings under your email signature lines. If you protect one aging consumer by these methods, the effort will be worth it!
Speaking of aging consumers, many of you have heard that I’m retiring in February. One thing that concerns me about retirement is not being able to keep current on industry advice about fraud. If you hear something next year that I should know, give me a call!
If your family prefers to check-out real haunted sites in South Carolina, check out this article. Even the names of “Greenville Tuberculosis Hospital” and “South Carolina Lunatic Asylum” are menacing!
I grew up in the Low Country (otherwise known as “God’s Country), and the story of Alice Flagg, a ghost in Murrells Inlet, is considered fact.
The story, according to this article, is that in 1849, a wealthy doctor named Allard Flagg moved into The Hermitage and invited his beautiful sister, Alice, to live with him. (They’re always beautiful.) Alice, of course, falls hopelessly in love with an unsuitable man, who is sent away by her brother.
Alice continued to see her suitor secretly. When her brother discovered the assignations continued, he sent sweet Alice off to a boarding school in Charleston. She contracted malaria, and just before she died, her brother brought her home. After her death, he found an engagement ring on a ribbon around her neck and furiously threw it into the marsh. Beautiful Alice has spent the last 150+ years clutching her chest while walking around All Saints Cemetery.
I bet that story would scare your kids, especially if you tell it after dark in the cemetery!
If you’re like me, though, 2020 has been scary enough. “Casper, The Friendly Ghost” is pretty much the most my family can handle this year. I wish you and your family more treats than tricks this weekend. Stay safe and Happy Halloween!
I’ve often said that title insurance underwriting is an art and not a science. A lawyer facing a title defect issue might obtain different opinions from different title companies and even from different lawyers employed by a single title company.
During my 28-year career as a lawyer for a title company, I have often joked that I try very hard to agree with myself!
If a lawyer calls to describe a title defect and says, “Claire, this is bad, isn’t it?”, it’s easy for me to agree. The closing attorney is, after all, often the best judge of marketable title in the community. But what if a different lawyer calls weeks later with basically the same facts, and explains why the defect is technically a problem but won’t cause a claim from a practical standpoint? That lawyer may be more familiar with the opposing parties or the history of the property. The underwriting answer may be different. Or what if the second lawyer says, “this is my best client” and asks for a one-time favor? You see where I’m going here. Answers may vary on the same facts, and an underwriting attorney can easily get into trouble with her agents!
I don’t know this lawyer, but he apparently had a successful litigation practice across many decades. In 2013, he was placed on interim suspension when a former associate filed a complaint alleging operational and case management issues, including concerns relating to the mismanagement of his trust account. The lawyer filed a petition for reconsideration, and the suspension was lifted with conditions. Notably the lawyer was prohibited from accessing or controlling the law firm’s trust and operating accounts. An associate was made responsible. (Huh? A senior partner who manages an associate couldn’t touch the trust account, but the associate could?)
Six years later, in 2019, formal charges were filed by the Office of Disciplinary Counsel. There was much discussion in the case about the ODC’s delay and whether that delay was a mitigating factor.
The underlying facts indicate that prior to 2012, the lawyer allowed his staff to routinely disburse funds from the trust account for operating expenses. Disbursements were made before deposits, funds were comingled, and funds were missing. A law firm formed by former associates demanded trust account funds for a particular client, and the funds were not available until this lawyer infused personal funds into the account
There was never a client complaint and, apparently, no client actually lost funds.
But the differing opinions about the appropriate sanction makes this case remarkable. The panel of the Commission on Lawyer Misconduct recommended a suspension of six weeks. In a dissent, Justice Hearn said she would impose a one-year suspension in light of the lawyer’s lengthy, unblemished disciplinary history and the prejudice sustained by the delay of the ODC.
In an opinion authored by Chief Justice Beatty, the majority disbarred the lawyer and chastised the ODC for its delay. The majority said that the delay was not prejudicial because the lawyer was allowed to practice law in the interim. An interesting added fact is that $21.5 million passed through the trust account since 2013.
In a concurring opinion, Justice Few said the case had nothing to do with Rule 417, the financial recordkeeping rule. Rather, he stated this lawyer stole client money from his trust account. Justice Few also said the delay of the ODC was the failure of the Court to supervise the professionals the Court employs.
So try to wrap your legal, logical brains around this. The panel recommended a six-week suspension and Justice Hearn recommended a one-year suspension on facts where Justice Few said the lawyer stole money from clients.
Apparently attorney discipline, like title insurance underwriting, is an art and not a science!
* In the Matter of Wern, South Carolina Supreme Court Opinion 27998 (October 7, 2020)
This is the time of the year when many of us are feverously working on budgets. My own crystal ball is particularly murky this year as COVID-19 has created more uncertainty than usual about the future of the real estate market in South Carolina.
Our state received excellent economic news on October 1, however, when Boeing issued a press release announcing the company will consolidate the production of its widebody jet in North Charleston. Our gain is Washington State’s loss. This move seeks to improve efficiencies during the market downturn caused by the pandemic to position the company for recovery and long-term growth.
The change won’t happen immediately. The press release indicated Boeing will continue to manufacture its 787-8 and 787-9 jets in Everette, Washington until it reaches its previously announced rate cut to six jets per month, which will probably occur sometime in mid-2021.
The release said that a company study confirmed the feasibility and efficiency gains created by consolidation will enable the company to accelerate improvements and target investments to better support customers. The North Charleston plant has lower production costs because labor is less expensive in South Carolina, and it’s a non-union plant.
Anyone who has driven from Columbia to Charleston has witnessed the extensive growth in the North Charleston area of not only Boeing, but the industries and housing developments that support Boeing. This is excellent news for us at a time when we need it!
South Carolina licensed lawyers have been nudged by our Supreme Court to provide assistance with our greatest responsibility as citizens: voting! See the attached Order of the Court granting CLE credit to lawyers who work the polls on November 3.
There are, of course, guidelines. You must work the entire day, for example, and you can’t get paid. Pay attention to the details if you seek the credit.
What a great way for lawyers to demonstrate we are leaders in our communities! And in this problematic political environment, the more clear-headed, logical, calm lawyers who can be present, the better!
In other election news, the United States Supreme Court held on Monday that South Carolina mail-in ballots must be witnessed. Help get that word out to your family, friends and clients.
We have had an incredible year in real estate in South Carolina!
Mortgage rates are at historic lows resulting in a refinance boom. Home sales have also been strong. We have seen a steady stream of migrations to our beautiful state from less desirable locations. We have seen folks tire of being stuck inside their homes by COVID looking for larger and more modern residences. And the low interest rates have assisted in those moves, too.
And commercial real estate has remained strong for us. We’ve seen the due diligence periods of some commercial projects slowed by COVID uncertainty, but these transactions appear to be closing, even if later than expected.
Real estate closing attorneys and their staff members have worked at a frenzied pace this year! They have tried to keep up with the whirlwind of activity while sanitizing between closings, performing closings on porches, in tents and in parking lots. They’ve worn masks and given away the used pens. It has taken a great deal of innovation to run a closing law firm in this environment, and they have succeeded!
It’s almost October, and we haven’t yet seen a slowdown. I point you to this article, however, written by Warren L. Wise for Charleston’s Post and Courier newspaper. The article points to a slip in the numbers of real estate sales in August as compared to August of 2019. Sales seem to have been slowed by inventory. We are still experiencing a desire for new and improved housing, but the houses aren’t available. It’s a true seller’s market.
I doubt these numbers will result in a huge slow-down between now and the end of the year. Perhaps we will see something akin to the seasonal slowdowns we have historically seen toward year-end. And if things go well, spring will give us the typical increase we are accustomed to in housing sales. Hang on for the ride!
We don’t often see current land-transaction dispute cases among South Carolina’s appellate court decisions, but the Court of Appeals handed down an opinion on September 16 that covers the gamut of equitable issues. Not uncommon, though, is that the facts in this equitable case involving real estate, like most, are quite interesting.
The use of the property in the case, Shirey v. Bishop*, is interesting in itself. Mr. and Mrs. Bishop operated a grave digging and burial vault business on the property for more than 30 years. Mr. Bishop died in 2010, leaving his wife to run the business by herself. Mrs. Bishop suffered from depression and anxiety and ultimately determined that she did not want to continue operating the business.
In 2012, Mrs. Bishop entered into a contract to sell the property to her niece, Cassandra Robinson. Although the bank wasn’t consulted, Robinson agreed to assume the mortgage and make the monthly payments until the mortgage was satisfied.
In 2014, however, Mrs. Bishop approached Shirey about purchasing the property, and a contract was signed in 2015 to sell the property to Shirey for $125,000. (Apparently Robinson was late on many mortgage payments.) The closing was to occur between August 3 and August 12, 2015. Time was stated to be of the essence.
On August 12, 2015, Shirey attempted to close by tendering funds to his attorney. After it became apparent that Mrs. Bishop was not going to appear, Shirey’s attorney called Bishop to ask if the closing period could be extended to August 13. Bishop agreed.
On August 13, Shirey arrived at his attorney’s office, but Bishop again failed to appear. Bishop’s doctor sent a note to Shirey’s attorney asking that Bishop be excused from the closing. (I’ve never seen a doctor’s excuse for a closing!) However, that afternoon, Bishop entered into a second contract with Robinson. This contract added a provision that Bishop would indemnify Robinson against “any and all issues of illegality or fraud concerning the transaction.” Bishop executed a deed conveying the property to Robinson, and Robinson recorded the deed the same day.
This lawsuit followed. The special referee ordered specific performance in favor of Shirey and further determined that Shirey was a bona fide purchaser who took free of any interest of Robinson, that Robinson and Bishop were in a confidential relationship, that the phone call from Shirey’s attorney to Bishop was tantamount to an extension of the contract, and that Bishop’s entering into the 2015 contract with Robinson demonstrated an intention to hold Robinson in default of the 2012 contract.
The Court of Appeals affirmed and made the following points:
Bishop and Robinson waived their statute of frauds argument by failing to plead it or argue it in the lower court.
Robinson was not entitled to the property under the 2012 contract because the 2015 contract held her in default.
The equities in the situation favored Shirey.
Bishop and Robinson were in a confidential relationship, not only because of their familial relationship, which is not sufficient standing alone, but because the facts indicated Bishop trusted Robinson and failed to seek legal advice. Additionally, Robinson drafted her second contract, and Bishop testified she didn’t understand what she was signing.
Shirey partially performed by tendering funds.
Shirey was a bona fide purchaser because he did not have notice of Robinson’s claim at the time he attempted to close. The Court held he had the “best right to” the title to the property.
Shirey was entitled to attorney’s fees because he prevailed under his contract, which provided for the award of attorney’s fees to the successful party.
All these issues are discussed in detail, and I recommend this case to any lawyer who seeks a refresher on equitable questions involving real estate under South Carolina law.
*South Carolina Court of Appeals Opinion 5718 (September 16, 2020).