Month: August 2022

SC Supreme Court issues one more opinion on the Episcopal church controversy

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….despite the fact that the same Court declared “this case is over” in April

This is the fifth blog about the controversy surrounding the Episcopal Church and its properties in South Carolina. The subject of this post is the case the South Carolina Supreme Court decided on August 17* which follows an opinion in April** that declared definitively “this case is over”. It seems the Court found a reason to disagree with itself. And, once again, the Court declares that there will be no remand and that the case is over.

Church schisms are difficult in many ways, and the real estate issues are particularly thorny. This dispute began in 2010 when the Lower Diocese of South Carolina, after doctrinal disputes, dissociated from the National Episcopal Church. The parties have been involved in extensive litigation in state and federal courts for the years that have followed the dissociation. As dirt lawyers, we don’t have to figure out the doctrinal issues, but we do have to be concerned with the real estate issues.

As I said in April, my best advice to practicing real estate lawyers is to call your friendly and intelligent title insurance underwriter if you are asked to close any transaction involving Episcopal church property. In fact, call your underwriter when you deal with any church real estate transaction. They will stay current on the real estate issues involving churches.

The current controversy involves whether the parishes adopted the national church’s “Dennis Cannon”. This church law provides that all real and personal property owned by a parish is held in trust for the national church. The actions taken by each church with respect to the Dennis Cannon have been examined ad nauseum by our Court.

In April, the Court ruled that 14 of the 29 churches would be returned to the national body. The opinion re-filed in August ruled that six more churches are allowed to keep their properties. After this decision, 21 parishes will remain with the local entity and eight will be returned to the national entity.

Without belaboring the analysis, the following parishes will maintain their properties according to the April opinion. The statuses of these congregations do not change with the August opinion:

  • Trinity Episcopal Church, Pinopolis
  • The Protestant Episcopal Church of the Parish of Saint Philip, Charleston
  • The Protestant Episcopal Church of the Parish of Saint Michael, Charleston
  • Church of the Cross, inc. and Church of the Cross Declaration of Trust, Bluffton
  • The Church of the Epiphany, Eautawville
  • The Vestry and Church Warden of the Episcopal Church of the Parish of St. Helena, Beaufort
  • Christ St. Paul’s Episcopal Church, Conway
  • The Church of the Resurrection, Surfside
  • The Church of St. Luke and St. Paul, Radcliffeboro
  • The Vestry and Church Wardens of St. Paul’s Church, Summerville
  • Trinity Episcopal Church, Edisto Island
  • St.Paul’s Episcopal Church of Bennettsville, Inc.
  • All Saints Protestant Episcopal Church, Inc. Florence
  • The Church of Our Savior of the Diocese of South Carolina, John’s Island
  • The Church of the Redeemer, Orangeburg

The following churches were ordered returned to the National Church by the April opinion but allowed to maintain their properties by the August opinion:

  • The Church of the Good Shepherd, Charleston
  • St. Bartholomew’s Episcopal Church, Hartsville
  • The Vestry and Church Wardens of the Episcopal Church of the Parish of St. John, John’s Island
  • St. David’s Church, Cheraw
  • The Vestry and Church Wardens of the Parish of St. Matthew, St. Matthews, Fort Motte
  • Holy Trinity Episcopal Church, Charleston
  • Vestry and Church Wardens of the Episcopal Church of the Parish of Christ Church, Mount Pleasant
  • St. James Church, James Island

The properties of the following parishes are held in trust for the National Church, according to both opinions.

  • The Church of the Holy Comforter, Sumter
  • The Vestry and Church Wardens of St. Jude’s Church of Walterboro
  • Saint Luke’s Church, Hilton Head
  • The Vestries and Church Wardens of the Parish of St. Andrew (Old St. Andrew’s, Charleston)
  • The Church of the holy Cross, Spartanburg
  • Trinity Church of Myrtle Beach

We may see more church schism opinions in South Carolina and elsewhere. Stay in touch with your friendly title insurance company underwriter!

*The Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, South Carolina Supreme Court Opinion No. 28095 (Re-filed August 17, 2022)

**The Episcopal church in the Diocese of South Carolina v. The Episcopal Church, South Carolina Supreme Court Opinion NO. 28095 (April 20, 2022).

Easements don’t typically lead to criminal contempt charges

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These horrible commercial neighbors have fought (and litigated) for years!

Our Advance Sheet from August 10 contained two Court of Appeals easement cases involving adjoining commercial properties in Murrells Inlet. Last week’s blog discussed the first of the two cases, which involved an award of attorneys’ fees*. This week, we’ll take up the second case. A footnote in the first case indicates the parties were heading to trial again immediately after oral arguments. These neighbors are obviously not getting along!

The litigation involves a restaurant property owned by Gulfstream Café, Inc. and an adjoining property containing a marina, a store and a parking lot owned by Palmetto Industrial Development, LLC. Palmetto’s predecessor in title granted four non-exclusive easements in 1986 and 1990 to Gulfstream. The easements allowed for ingress and egress and vehicular parking. It was anticipated that the marina property would use the parking primarily in the daytime and the restaurant property would use the parking primarily in the evening.

The easements included general warranties, the same language that appears in our normal general warranty deeds: “(A) does hereby bind itself and its successors and assigns, to warrant and forever defend, all and singular, the said easement unto (B), its successors and assigns, against itself and its successors and assigns, and all others whomsoever lawfully claiming, or to claim the same or any part thereof.” This language is consistent with South Carolina Code §27-7-10.

This case actually involves a criminal contempt finding in the Circuit Court for parking a golf cart in front of the easement holder’s delivery gate! The golf cart was parked there on multiple occasions in a normal parking spot. But Gulfstream couldn’t orchestrate efficient deliveries while the golf cart blocked its delivery gate. The parties are obviously horrible neighbors.

The second case reveals an interesting fact. The property owner of the burdened property intended to demolish its building and rebuild a larger building on stilts and extending over the parking lot. The owner of the easement was having none of that!

In 2017, the Circuit Court found criminal contempt and ordered a fine of $3,000 or thirty days in jail. In 2018, the parties proceeded to trial, and a jury awarded Gulfstream $1,000 for interference with the easement. The Circuit Court entered a permanent injunction: “(Appellants) are enjoined from preventing (Gulfstream) from enjoying the right(s) granted to it in the recorded nonexclusive joint easement. (Appellants) are restrained and may not expand the outside boundaries of any new building beyond those previously used. The (c)ourt is specifically not talking about height, only the outside boundaries.”

The parties fought on, seeking to clarify the easement, and seeking another criminal contempt finding. The Court amended the injunction for clarification. The Appellants moved again to clarify the injunction and argued that an injunction should not have been granted because the jury awarded monetary relief. Other arguments related to the building’s construction and that the injunction enlarged the easement. The Circuit Court denied the motions and issued a finding that the Appellants “engaged in criminal contempt of court by deliberate and intentional acts by placement of a golf cart which interfered with the proper use of the non-exclusive easement in this matter and was in direct violation of the (c)ourt’s previous order.” Appellants were fined $5,000.

Skipping a little of the very long procedural history, let’s move on to the appeal. To make a very long story shorter, the Court of Appeals held that the Circuit Court did not abuse its discretion in finding Appellants in criminal contempt. You should read these two entertaining cases. Real estate lawyers don’t often have the pleasure of being entertained by published opinions!

*The Gulfstream Café, Inc. v. Palmetto Industrial Development, LLC, South Carolina Court of Appeals Opinion 5935 (August 20, 2022).

** The Gulfstream Café, Inc., vs Lawhon, South Carolina Court of Appeals Opinion 5936 (August 20, 2022).

Murrells Inlet commercial neighbors embroiled in litigation

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Our Advance Sheet from August 10 contained two Court of Appeals easement cases involving adjoining commercial properties in Murrells Inlet. This blog will discuss the first of the two cases*. Next week, we’ll take up the second case. A footnote in the first case indicates the parties were heading to trial again immediately after oral arguments. These neighbors are obviously not getting along!

The litigation involves a restaurant property owned by Gulfstream Café, Inc. and an adjoining property containing a marina, a store and a parking lot owned by Palmetto Industrial Development, LLC. Palmetto’s predecessor in title granted four non-exclusive easements in 1986 and 1990 to Gulfstream. The easements allowed for ingress and egress and vehicular parking. It was anticipated that the marina property would use the parking primarily in the daytime and the restaurant property would use the parking primarily in the evening.

The easements included general warranties, the same language that appears in our normal general warranty deeds: “(A) does hereby bind itself and its successors and assigns, to warrant and forever defend, all and singular, the said easement unto (B), its successors and assigns, against itself and its successors and assigns, and all others whomsoever lawfully claiming, or to claim the same or any part thereof.” This language is consistent with South Carolina Code §27-7-10.

The question in this case is whether the easement holder (the grantee) is entitled to attorneys’ fees in connection with litigation against the easement grantor’s successor in title based on the easement. In many deed warranty cases, the grantee sues the grantor when a third party asserts an interest in the real estate. In this case, the only parties are the owners of the adjoining properties.

The relationship between the parties began to sour in 2016 when Palmetto demolished and started to rebuild its building. Gulfstream brought suit for interference with its easement and received a temporary injunction. Palmetto was subsequently held in criminal contempt for willfully violating the injunction.

In 2018, Gulfstream filed a complaint against Palmetto seeking a declaratory judgment based on interference with the easement and a finding that Palmetto breached its warranty.  This case sought attorneys’ fees and costs. Later in 2018, a jury found for Gulfstream on its claim for interference in the 2016 case.

Both parties moved for summary judgment in the 2018 case. Gulfstream argued that the plain language of the warranties provided for Palmetto’s obligation to defend Gulfstream. Palmetto relied on the language of the warranty provision and a 2004 South Carolina Supreme Court case, Black v. Patel**.

In analyzing the arguments, the Court of Appeals began with the proposition that in South Carolina, the authority to award attorneys’ fees can only come from statute or contract. Next, the Court stated that a warranty of title is a contract on the part of the grantor to pay damages in the event of a failure of title. Generally, when a grantor refuses to defend the title against a third party claiming title, the grantee is allowed attorneys’ fees. The general rule for cases in this context, according to the Court, is that only ‘lawful”—that is successful—claims asserted against title justify an award of attorneys’ fees where the grantor fails to defend the title.

A footnote in the Black case set out an exception to the general rule. The grantor would also be responsible for attorneys’ fees where its wrongful act causes the grantee to be in litigation with a third party.

The question in this case became whether the warranty provision in Gulfstream’s easements provide that Gulfstream is entitled to attorneys’ fees from Palmetto. The Court held that the answer is “no” because Gulfstream’s title is not in issued. Palmetto did not dispute the Gulfstream has easements over Palmetto’s property, rather, Palmetto, at worst, has been infringing upon Gulfstream’s rights. Gulfstream’s actual title was not challenged and there is not a third party involved as contemplated in Black.

The Court did not that its decision does not prevent Gulfstream from seeking attorneys’ fees in future contempt actions as a sanction if Palmetto continues to infringe upon Gulfstream’s rights. In other words, the Court seems confident that litigation between these parties will continue.

I’m going to have to go eat seafood in Murrells Inlet to check out these properties!

*The Gulfstream Café’, Inc. v. Palmetto Industrial Development, LLC., South Carolina Court of Appeals Opinion 5935 (August 10, 2022).

**357 S.C. 466, 594 S.E.2d 162 (2004).

SC Supreme Court probate case is real estate adjacent

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Interest in marital property vests when marital litigation is filed

Real estate lawyers, consider these fact patterns:

  • James Franklin owns 200 acres of property under contract with your developer client. Your client intends to use the property to develop a residential subdivision. Your title examination reveals Franklin’s wife recently filed a petition for divorce. Can your closing proceed without involving Franklin’s wife?
  • Let’s make the facts more difficult.  A divorce has been filed, but your title examination misses it.
  • Finally, let’s make the facts even more difficult. A divorce has been filed, your title examination misses it, and Mrs. Franklin dies before your closing.

Seels v. Smalls* answers these questions. And the involvement of Mrs. Franklin or her personal representative is required for your closing in each instance. In fact, the involvement of the family court and probate court may also be required.

In this South Carolina Supreme Court case, Olivia Seels Smalls and Joe Truman Smalls had been married for more than thirty years, living in Goose Creek, and accumulating significant assets. Mrs. Smalls filed marital litigation on July 2, 2014 and died unexpectantly on December 17, 2015. Mrs. Smalls’ brother, Randall Seels, was appointed personal representative. He moved to be substituted as plaintiff in the family court case. Mr. Smalls sought dismissal of the action, arguing the entire matter had abated upon the wife’s death.

It took our Supreme Court thirteen pages to ruminate over what I thought was settled law in South Carolina. The personal representative was entitled to the wife’s interest in the marital property. One paragraph from page 46 summarizes the holding:

“In summary, section 63-3-530, governing the family court’s subject matter jurisdiction, provides in subsection (A)(2) that the family court has ‘exclusive jurisdiction’ to settle all legal and equitable rights regarding marital property, importantly in section 20-3-610, the General Assemble has confirmed that each spouse has a ‘vested special equity and ownership right in the marital property’ that is subject to apportionment by the family court at the time marital litigation is filed. Further, the definition of ‘marital property’ in subsection 20-3-630(A) provides ‘marital property’ is all property acquired or owned by the parties as of the date marital litigation is filed, regardless of how it is titled, so marital property essentially springs into existence as a legally defined concept at that moment in time.”

The bottom line, dirt lawyers, is that marital litigation involving your seller should stop you in your tracks. Don’t close until you carefully examine the family court implications. And, if your client’s spouse has died, you will also need to deal with probate court implications. If you have concerns, call your friendly title insurance company underwriter for assistance.

This blog often ends with these words, and today is no exception. Be careful out there!

*South Carolina Supreme Court Opinion 28103 (August 3, 2022).

Chicago Title identifies earnest money fraud scheme

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Chicago Title’s South Carolina state office sent a memorandum to its agents on July 26, entitled “Checks Drawn on Foreign Banks.”  I wanted to share this valuable information with all South Carolina practitioners even though this particular fraud scheme has not been reported in any South Carolina transactions. Knowledge is power! Let’s stop this scheme at our borders.

The memo points to buyers who tender counterfeit cashier’s checks from Canadian banks as earnest money deposits. The fraudster quickly backs out of the transaction and requests a refund. Because foreign checks can take more than thirty days to process, the refund requests are made before the checks can be negotiated.

The scheme has been used in at least nine Midwestern states. The common facts are:

  • The offer to purchase provides for an all-cash transaction.
  • The selling broker has never met the buyer.
  • The buyer has not physically viewed the property.
  • The buyer is located outside the United States.
  • The initial deposit exceeds the required earnest money deposit.
  • The deposit is in the form of a check drawn on a Canadian bank.
  • The buyer requests that the funds be returned by a wire to their account.

Chicago Title advises that its agents should not accept foreign checks at all. Instead, agents are advised to insist on wired funds. This is great advice which will assist you in working within our ethics rules and in protecting your trust accounts. You don’t want to be in the position of having to replace lost funds! Be careful out there!