Trends

A Zoning Battle Ignites in Fort Mill over Silfab Solar

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There is yet another hot button zoning conflict in the Palmetto state that has attracted much public attention in Fort Mill, SC. It has spawned several lawsuits, an Attorney General inquiry, and legislators filing bills up at the State House that certainly would have major impact on S.C. dirt lawyers if they were to pass. 

The controversy centers around Silfab Solar’s ongoing construction of a solar panel manufacturing factory near Fort Mill, SC. The company is renovating a warehouse in an existing industrial park there that is jointly operated by York and Chester counties. The industrial park is located near several residential developments, but most notable in recent press coverage is the elementary school located on the adjacent parcel to the proposed Silfab site.  

In 2022, in connection with recruitment by the S.C. Department of Commerce, Silfab requested zoning verification from York County that its proposed operation would be in compliance with local zoning ordinances. The York County zoning staff ultimately determined that the manufacture of solar panels fit within the permitted use of “computer and electronic productions manufacturing” which was permitted in the “Light Industrial” zoning classification assigned to the industrial park. Notably, there was no appeal of the zoning verification.

With the zoning verification in hand, Silfab decided to move forward with the project and entered into a fee in lieu of tax (FILOT) Agreement with York County. The County passed an ordinance approving the FILOT agreement in September 2023, in effect ratifying the proposed project at its proposed location. Silfab thereafter obtained building and environmental permits and started construction at the site

But at some point in the process, the public became aware of the project and that hazardous gases and chemicals would be used as part of the manufacturing process of the panels. As concerns grew, a neighboring landowner filed a request for a zoning interpretation inquiring whether solar panel manufacturing was actually a permissible use under the zoning ordinance. In 2024, the York County Board of Zoning Appeals (BZA) found that solar panel manufacture is not permitted within the Light Industrial zoning classification, which effectively overruled the prior determination of the zoning staff. 

Silfab appealed the BZA ruling but construction has continued under the existing zoning verification and permits. In response to growing public outcry, York County issued statements that its interpretation of state law and its ordinance is that BZA zoning interpretations only apply prospectively and that the County does not have authority to revoke previously given permits or to issue a stop work order.

But the controversy really expanded into an issue of statewide concern in March when Silfab reported two separate chemical leaks within a three day period. While the leaks were contained and were reportedly of no danger to the outside community, DHEC ordered Silfab to pause its use of previously permitted chemicals pending a review. Silfab has since entered into an agreement with DHEC not to bring any more dangerous chemicals into its site or proceed with manufacturing until the investigation is completed.

The leaks also drew the attention of Attorney General Alan Wilson who issued inquiries to York County concerning the propriety of the zoning approval and to Silfab concerning the cause and extend of the leaks. The gubernatorial candidate appears to be closely monitoring the situation as events unfold.

The South Carolina General Assembly is also involved in the debate. Local legislators have introduced proposed bills in the House and Senate that would amend the Code to give Counties the power to revoke permits and stop work on projects when the project is found to be in violation of zoning ordinances. 

While these bills are unlikely to pass before the end of the current session, there have been a number of other bills advanced in the State House in recent years that have sought to give local authorities the ability to have something of a “do-over” concerning prior approvals of development. Often these bills have been provoked by growing public outrage over major projects that were passed by local authorities without much initial fanfare.  

While the Court’s pending review of the BZA appeal may result in restoring the original zoning interpretation and making much of the present controversy moot, there is always the chance of additional appeals. Further, with the national debate over data centers expanding into South Carolina in recent months the salience of the Silfab controversy may impact future debates concerning whether government entities should be able to change their mind about prior zoning decisions even after property owner’s have formed plans and made investments relying upon them. 

The 2026 ALTA Survey Standards Are Here

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What South Carolina Real Estate Attorneys Need to Know

As of February 23, 2026, the 2026 ALTA/NSPS Minimum Standard Detail Requirements for Land Title Surveys officially replaced the 2021 standards. These updates may appear technical at first glance, but for South Carolina real estate attorneys—particularly those handling commercial transactions, development work, and lender representation—the changes carry meaningful legal and practical consequences.

The 2026 Standards reflect evolving technology, shifting risk allocation, and mounting expectations from title insurers and lenders. Attorneys who understand these changes will be better positioned to manage risk, avoid closing delays, and advise clients with confidence.

In South Carolina, ALTA/NSPS Land Title Surveys are a cornerstone of development due diligence, commercial financing and title insurance underwriting. While surveyors perform the fieldwork, attorneys are often the gatekeepers—reviewing surveys for compliance, identifying red flags, and reconciling survey matters with title commitments.

Any change to the ALTA Standards therefore ripples directly into:

  • Title objection and resolution strategies
  • Closing timelines
  • Survey exceptions and endorsements
  • Risk allocation among buyers, lenders, and insurers

The 2026 Standards were jointly adopted by ALTA and the National Society of Professional Surveyors (NSPS) in October 2025 after several years of committee work, with the stated goal of improving clarity, consistency, and adaptability.

A Clear Effective Date—with Transitional Traps

The effective date for the new standards is February 23, 2026. Any ALTA/NSPS Land Title Survey contracted for on or after that date must comply with the 2026 Standards unless the parties agree otherwise in writing. Surveys contracted before the effective date may still be governed by the 2021 Standards, even if completed later—but only if that is clearly addressed in the engagement agreement.

For attorneys, this means:

  • Engagement letters and contracts should specify which ALTA standard applies
  • “Survey updates” or revised plats may trigger new standard requirements
  • Ambiguity can expose clients—and counsel—to disputes with lenders or insurers

Technology Is Now Explicitly Embraced

One of the most forward‑looking changes is the shift from requiring information obtained strictly “on the ground” to allowing “practices generally recognized as acceptable” in both fieldwork and mapping. This expressly accommodates modern tools such as drones, LiDAR (Light Detection and Ranging), and other remote‑sensing technologies, without tying the standards to any specific method.  

For attorneys, this reinforces the need to:

  • Review surveys for completeness, not methodology
  • Understand that aerial or remote data may now support certain depictions
  • Counsel clients that innovation alone is not grounds for objection

Expanded Documentation of Possession and Occupation

Perhaps the most practically significant change is the requirement that evidence of possession or occupation be noted along the entire perimeter of the property, regardless of proximity to boundary lines. This exceeds prior standards, which often focused only on near‑boundary features.

This change:

  • Increases the likelihood that surveys will reveal fence lines, uses, or improvements suggesting potential boundary or prescriptive issues
  • Elevates the importance of attorney review and follow‑up
  • May increase survey‑related title objections and negotiation

Parol Statements Must Be Noted

Closely tied to evidence of possession and occupation, under the 2026 Standards, surveyors must note any verbal (“parol”) statements made by landowners or occupants relating to title or boundary issues.

For attorneys, this is a double‑edged sword:

  • It may surface issues earlier in the transaction
  • It also introduces non‑record information that may complicate underwriting, disclosures, and risk tolerance

These notations do not constitute legal opinions, but they should never be ignored during diligence.

Title Evidence and Research Responsibilities Are Clarified

The 2026 Standards expand guidance on how surveyors source title evidence when a current title commitment is unavailable, and they more clearly acknowledge shared responsibility between surveyors and title professionals for obtaining certain documents.

South Carolina attorneys should:

  • Provide current title commitments early whenever possible
  • Clearly communicate expectations regarding easement depiction
  • Coordinate closely with surveyors on complex tracts or non‑fee interests

Table A Gets a Notable Update

The optional Table A items remain a critical tool for tailoring survey scope. In 2026:

  • Item 15 was clarified to allow certain depictions via aerial or satellite imagery if agreed to in writing
  • A new Item 20 requires a summary table of conditions and potential encroachments on the face of the survey—intended as a factual summary, not a legal conclusion
  • The former “catch‑all” or blank item has been renumbered as Item 21

Attorneys should carefully align Table A selections with lender and client expectations.

Practice Takeaways for South Carolina Real Estate Attorneys

The 2026 Standards raise the bar—not by radical change, but by greater disclosure and clearer expectations. Attorneys should update internal checklists, educate clients, and adjust survey review practices accordingly.

Sullivan’s Island, Fractional Ownership, and the Limits of Zoning Law

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We all know that South Carolina has some of the most beautiful natural scenery in the nation.  As the weather gradually improves, and with Spring Break underway for many and the summer rental season right around the corner, tourists begin flocking to our beautiful beaches.

In February 2026, a legal dispute[1] on Sullivan’s Island quietly reshaped the conversation around property rights, zoning enforcement, and the future of residential ownership models in South Carolina’s coastal communities. At the center of the case was 2 SC Lighthouse, LLC, a property owner, and Pacaso, Inc., a company that facilitates fractional homeownership. On the other side stood the Town of Sullivan’s Island, determined to enforce its long‑standing restrictions on short‑term rentals.  While the case involved a single property, its implications reach far beyond one address.

Sullivan’s Island has long maintained strict zoning rules designed to preserve its residential character. Among those rules are limits on short‑term vacation rentals, which town officials argue can disrupt neighborhoods and strain local infrastructure. As new real estate models have emerged, the town has taken a close look at how these arrangements fit within existing ordinances.

That scrutiny intensified when a home owned by 2 SC Lighthouse, LLC was used in partnership with Pacaso. Pacaso’s model allows multiple buyers to purchase fractional ownership interests (in this instance, one‑eighth shares) in a single property. Each owner receives scheduled access throughout the year, and Pacaso manages maintenance and logistics. However, unlike a true rental property, occupants do not pay nightly or weekly fees to stay in the home; they are staying in a property they legally own.

Town officials concluded that the arrangement functioned like a vacation rental in practice, even if it was structured differently on paper. The Town’s Zoning Administrator issued a violation, asserting that the property was being used as a prohibited short‑term rental under Sullivan’s Island zoning laws. That decision was upheld by the Town’s Board of Zoning Appeals (BZA).

2 SC Lighthouse and Pacaso appealed to the Charleston County Circuit Court. The court sided with the Town, effectively agreeing that the zoning authorities’ interpretation of the ordinance should stand.

The property owner and Pacaso appealed, arguing that a fractional ownership is not a rental, and that the Town was stretching the definition of “short‑term rental” beyond what its ordinance actually said.

On February 18, 2026, the South Carolina Court of Appeals reversed the circuit court’s decision, siding with 2 SC Lighthouse and Pacaso. The ruling turned on the critical distinction between ownership and renting. The court emphasized that the individuals staying in the home were owners, not tenants. Without a rental transaction (no landlord‑tenant relationship and no payment for temporary lodging), the court found that the town’s definition of a short‑term rental did not apply.

In making its ruling, the court clarified that interpreting a zoning ordinance is a question of law rather than a factual determination entitled to broad deference. While zoning boards are given leeway in applying ordinances, they cannot rewrite or expand those ordinances. If a municipality wants to regulate fractional ownership, it must do so explicitly.

Although the ruling is an unpublished opinion and is not binding precedent, its practical impact is significant. For Sullivan’s Island, the decision places limits on enforcement under current zoning language. The town may still regulate short‑term rentals aggressively, but it cannot treat fractional ownership arrangements as rentals unless its ordinances are amended to say so.

For other South Carolina coastal communities, the case serves as a warning and a roadmap. Many towns face similar tensions between preserving neighborhood character and responding to evolving real estate practices. The decision signals that courts will closely scrutinize attempts to regulate new ownership models using old definitions.

For property owners, the ruling reinforces a core principle of land‑use law: property rights cannot be curtailed by implication. Restrictions must be clearly stated, not inferred based on policy concerns alone.

The decision does not end the debate over fractional ownership on Sullivan’s Island or elsewhere. Municipalities may respond by revising zoning ordinances to directly address co‑ownership models. Developers and property owners, meanwhile, will likely continue testing the boundaries of traditional zoning frameworks.

This case highlights the broader reality that zoning laws written decades ago are being asked to govern a rapidly changing housing market. As ownership models evolve, so too must the rules that regulate them—through legislation, not interpretation.

For now, 2 SC Lighthouse, LLC’s victory stands as a reminder that in land‑use law, words matter, and towns must play by the rules they have written.

[1] Pacaso, Inc. & 2 SC Lighthouse, LLC v. Town of Sullivan’s Island, South Carolina, Appellate Case No. 2024‑000134, 2026‑UP‑078 (S.C. Ct. App. Feb. 18, 2026) (unpublished).

Data Centers Raise Legal Questions for Rural South Carolina

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Across rural South Carolina, data center proposals are generating increasing controversy as residents challenge whether counties are complying with zoning statutes, comprehensive plans, and public‑notice requirements.

In Colleton County, Council amended its zoning ordinance to add data centers as a permitted use and to create a special exception within residential districts – changes that paved the way for a proposed $6 billion facility near the environmentally protected ACE Basin. In January, neighboring landowners, represented by the Southern Environmental Law Center, filed suit alleging that the county enacted these amendments without adequate notice or transparency, that the changes conflict with the county’s comprehensive plan, and that allowing an industrial special exception within a rural district is inconsistent with existing zoning classifications.

Similar disputes continue to surface statewide. In Marion County, Council recently approved a $2.4 billion data center project and a fee‑in‑lieu‑of‑tax agreement. The project appeared on the agenda only under the code name “Project Liberty” and was covered by a nondisclosure agreement, leaving the public without meaningful information until the final reading. Aiken and Berkeley Counties have faced comparable challenges.

Opponents of data centers emphasize their extraordinary electrical demand, which has already strained power grids across the country. Some estimates now place data‑center consumption at roughly seven percent of U.S. electricity use, with projections continuing to rise. In the Colleton debate, residents expressed concern that utilities lack sufficient capacity to serve the proposed facility and that ratepayers – particularly Santee Cooper customers – may ultimately bear the cost of necessary upgrades.

Water usage presents a parallel problem. Data centers generate substantial heat and rely heavily on water‑based cooling. The volume required can impose real stress on local water systems, particularly in rural areas. While newer closed‑loop cooling technologies reduce consumption, they require additional energy and higher capital investment.

Other community impacts have also drawn scrutiny. Backup diesel generators – which data centers depend on for uninterrupted service – emit gases and particulates that may pose health risks. Residents in rural counties also cite noise, light pollution, and the visual intrusion of large industrial campuses as threats to the historic and environmental character of their communities.

Yet despite these concerns, the economic incentives remain significant. Proponents of the Marion County project note that the facility could generate nearly $28 million annually for a county operating on a $25 million budget. Construction phases typically span several years, providing a substantial economic boost. And although data centers require relatively few employees once operational, they nevertheless contribute positively to local employment and tax revenue. Moreover, the facilities are essential to the growth of artificial intelligence and advanced computing – technologies many policymakers liken to a modern “space race.”

The General Assembly has taken notice. Several bills addressing data‑center siting, utility impacts, and environmental standards have been introduced this session. Developments in the Colleton County litigation, along with potential legislative action, will likely shape future permitting and zoning practices statewide.

For South Carolina lawyers, these projects are becoming increasingly complicated to navigate to completion. Title insurers are increasingly view data centers as high‑risk properties due to their scale, public visibility, and susceptibility to challenge. Attorneys may be asked to perform extended title examinations, provide more detailed zoning analyses, and secure specialized endorsements requiring careful underwriting. As counties pursue these high‑value developments and as communities continue to push back, lawyers will as always be on the front lines.

Graceland Fraudster Does the Jailhouse Rock

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Riley Keough, inset, with Graceland

Lisa Findley, a woman from the Ozarks with a known history of petty crime, was sentenced to 57 months in federal prison last month after pleading guilty to mail fraud. The charge stemmed from a bizarre scheme in which she attempted to secure a $3 million payoff using a fake loan backed by a fraudulent mortgage on Graceland, the former home of Elvis Presley.

Using at least four different alter egos, Findley attempted to convince lawyers for the estate of the late Lisa Marie Pressley1 and of her daughter, actress Riley Keough2, that a non-existent company called Naussany Investments & Private Lending, LLC, had loaned Lisa Marie $3,800,000 secured by the iconic home.

Findley supported the scheme by forging the signatures of Lisa Marie and a real Florida notary on fake loan documents. She even went so far as to threaten foreclosure. While attorneys for the Presley estate grew suspicious minds, Findley escalated her efforts by filing a creditor’s claim against the estate in California and separately recording a fraudulent Note and Deed of Trust in Tennessee land records. Despite making little progress, she pressed the matter by publishing a Notice of Foreclosure Sale in the Memphis Commercial Appeal.

While the Pressley attorneys rushed to obtain an injunction to keep the Jungle Room in the family’s domain, reporters and law enforcement began to close in on what proved to be an easy web to unweave. Perhaps feeling caught in a trap, Findlay’s alter egos abruptly disclaimed any connection to the loan and directed attention to a third alter ego.  After some token resistance, this alter ego confessed in an email written in Spanish – don’t ask me why – to that he was really a Nigerian scam artist and that the authorities should seek him in that fine African nation. 

This final effort to by Findlay was … not successful. Despite asking the judge to don’t be cruel, she will now spend a blue Christmas in a federal penitentiary for the next several winters.

In all seriousness, this scheme highlights both the growing prevalence of “imposter” frauds and the lengths and doggedness which fraudsters will pursue them. While this imposter chose very poorly in her attempted fraud target, the methods used should be a warning to all real estate professionals of what kind of methods they might run across in a scam. You could see how a less ambitious scheme could have been a little more credible and come closer to success.  

[1] Daughter of the King of Rock and Roll, and wife to the King of Pop, Michael Jackson! Plus, her mom was on Dallas! Pure royalty. 

[2] Keough was great in the Amazon mini-series ‘Daisy Jones and the Six.’  Definitely worth the watch if you have not seen it.

[3] Foreclosures can proceed non-judicially in Tennessee, which means creditors may in many circumstances sell property without court oversight.  

Corporate Transparency Act Whack-a-Mole

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I have written many words about the Beneficial Ownership Information (BOI) reporting requirement of the Corporate Transparency Act (CTA) over the last couple of years and much of my writing has been rendered obsolete by events. So, it came as no surprise on March 21, 2025, when the world changed again, but even I wouldn’t have thought they’d have done the CTA like they done.    

If you want to get to the meat of the latest development, you can skip ahead to the end of this lengthy entry, but for those of you that need a refresher or those that just want to watch me work through my feelings a bit, the next few paragraphs are for you. 

Readers of this blog probably know by now that Congress passed the CTA some years ago for the stated purpose of assisting law enforcement agencies in preventing bad guys (foreign and domestic) from laundering money and hiding assets in the United States using shell companies. In its wisdom, Congress decreed that almost any entity registered with a Secretary of State’s office must file a report detailing the significant stakeholders in the entity and where they might be found.

Under the Biden Administration, the Financial Crimes Enforcement Network (FinCEN), a division of the U.S. Department of the Treasury, came up with a framework of rules, processes, and penalties covering the duty of entities to report BOI. New companies would have 30 days to report the required BOI information to FinCEN; all existing entities would have to make their report by January 1, 2025. 

However, the whole thing did not go off as smoothly as planned for FinCEN.  Across the country (but most especially in Texas) plaintiffs filed lawsuits challenging the reporting requirement as unconstitutional or at least very inconvenient and burdensome. Before FinCEN could even think about imposing its first fine, a Texas federal court entered an injunction enjoining FinCEN from enforcing the BOI reporting requirement while the parties litigated the constitutionality of the Rule.  Game Off!  

The Government appealed this ruling to the Federal Court of Appeals for the Fifth Circuit, which initially removed the injunction. Game On! 

But, just a few days later, the same Court of Appeals, reinstated the injunction.  Game Off!  

The Government (by this time the Trump Administration) remained dogged in its defense of the reporting requirements and appealed the matter to our highest court. There, the United States Supreme Court ultimately sided with the Government and rescinded the injunction in the first Texas case. Game On!  However, by this time a second Texas federal district court had entered its own nationwide injunction against enforcement of the Act. Game Off!  

More time passed, additional words were written, and additional hearings were held, but eventually this other Texas federal district court decided that despite the impassioned argument of the Plaintiffs it did not have authority to ignore the persuasive authority of the Supreme Court’s previous ruling in a nearly identical case. Subsequently, the Texas court (I would like to imagine) somewhat sulkily rescinded its injunction. Game On! Likely a joyous party continued into the wee hours in the FinCEN offices the day it announced that BOI reporting was back, and that the deadline for reporting would for certain be March 21, 2025.  

However, this is the year 2025, and this the Corporate Transparency Act we are talking about, so it was not so simple for the good folks at FinCEN. On February 21, 2025, FinCEN issued a press release indicating that despite the Government’s vigorous effort to defend the Rule all the way the Supreme Court, that it did not plan to enforce the Rule. The press release indicated that FinCEN planned to issue an Interim Rule before the March deadline, but the FinCEN website still promised fines and penalties for anyone failing to comply. Game Off?

On March 21st, FinCEN issued an Interim Rule that dramatically changed the scope and application of the Rule. First, the Interim Rule specifically exempts United States entities from BOI reporting requirements.  Second, the Interim Rule provides that foreign entities registered to do business in the United States need not report any information about its beneficial owners that are United States individuals. Third, the reporting deadline for foreign entities to file BOI reports was extended to 30 days from the effective date of the Interim Rule.

The Interim Rule certainly reduces the theoretical usefulness of BOI reporting to law enforcement as FinCEN’s database will now only contain information about foreign entities that register in the United States and their foreign beneficial owners. Criminals inclined to set up shell companies to hide their illicit assets probably would be well advised to use entities formed in the United States if that isn’t what they were doing before. Perhaps, the Interim Rule is arguably not what Congress intended, but there is a lot of that going around.

Practically, the reduction in the scope of the Rule will diminish the relevance of the CTA to real estate lawyers. Those attorneys that represent foreign entities doing business in the United States will need to be prepared to advise clients of the reporting requirements that go along with registering their foreign entity in the U.S., but those attorneys representing entities formed in the United States can likely breathe a long sigh of relief.  At least for the moment.

Following injunction, FinCEN announces compliance with CTA is voluntary

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On December 3, the United District Court for the Eastern Division of Texas granted a nationwide preliminary injunction that prohibits the federal government from enforcing The Corporate Transparency Act.

In response, the United States Treasury Financial Crimes Enforcement Network (FinCEN) announced on December 9 that while the injunction is in place, compliance with the CTA is only voluntary.

The Corporate Transparency Act, which went into effect January 1, 2024, requires many companies to report beneficial ownership information to FinCEN. Beneficial ownership information is defined as identifying information about the individuals who directly or indirectly own or control a company. The deadline for entities created before January 1, 2024 was January 1, 2025

Lawyers have been scrambling to grasp the intricacies of the new law and to assist their corporate clients, including homeowners’ associations, in compliance.

Six plaintiffs filed the lawsuit in May challenging the constitutionality of the law. The decision is based on the Commerce Clause, and the statute is based on national security and aimed at enforcing laws against money laundering.

This case will surely go to the Supreme Court, and we will have to wait to see how that Court reacts. It is possible that the rationale for the legislation holds for some but not all entities. Homeowners’ associations seem to be likely candidates to dodge this particular bullet.

In the meantime, your clients are not required to comply with the new law.

Department of Justice takes last-minute action against NAR Settlement

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On November 24, just 48 hours before the National Association of Realtors’ settlement agreement headed to final approval, the Department of Justice filed a statement of interest in the lawsuit.

The filing indicated that the DOJ did not participate in the underlying litigation, but it challenged the settlement’s provision that requires buyers and buyers’ agents to enter into a written agreement before touring a home. This provision raises concerns under antitrust laws that could be addressed in multiple ways, according to the DOJ’s statement.

The DOJ suggested rectifying the issue by eliminating the buyer broker agreement requirement or to disclaim that the settlement creates any immunity or defense under the antitrust laws. Otherwise, the court could clarify that the settlement approval affords no immunity or defense for the buyer-agreement provision. The DOJ believes the settlement could limit the ways buyer brokers compete for clients.

The final hearing is scheduled for November 26 in Missouri. The NAR said in a statement that it will advocate for a final settlement that day. The statement suggested that the settlement is not what the NAR wants, but that it is preferable to continued litigation and the uncertainty of a jury verdict.

We’ll see lots of news on this topic this week and next week!

In the meantime, Happy Thanksgiving wishes for you and your family!

SC Legislature provides fix for MV Realty problem

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This blog has previously discussed MV Realty, as title examiners reported finding “Homeowner Benefit Agreements” or “Exclusive Listing Agreements” filed in the public records as mortgages or memoranda of agreement. The duration of the agreements purported to be forty years, and searches revealed hundreds of these unusual documents filed in South Carolina. The documents state they create liens against the real estate in question.

The company behind these documents is MV Realty PBC, LLC which appeared to be doing business in the Palmetto State as MV Realty of South Carolina, LLC. The company’s website indicated the company would pay a homeowner between $300 and $5,000 in connection with its Homeowner Benefit Program. In return for the payment, the homeowner agreed to use the company’s services as listing agent if the decision was made to sell the property during the term of the agreement. The agreements typically provided that the homeowner may elect to pay an early termination fee to avoid listing the property in question with MV Realty.

The company has been the target of litigation and legislation in many states, and, thankfully, Governor McMaster signed South Carolina Code §27-28-10, et seq., into law on May 20. This legislation effectively bans these long-term listing agreements.

The legislation defines a real estate service agreement as a “written contract between a service provider and the owner or potential buyer of residential real estate to provide services, current or future, in connection with the maintenance, purchase, or sale of residential real estate.” Under the new law, a real estate service agreement is “unfair” and void if it is intended to be effective for more than one year; 1) expressly or implicitly purports to run with the land and bind future owners of the property; 2) allows for the assignment of the services contract without notice or consent of the owner; or 3) creates a lien, encumbrance, or security interest on the property.

Under the legislation, any recorded unfair real estate services contract is no longer effective as a lien, encumbrance or security interest against property. The recording of this type of document no longer serves as constructive notice to any interested party in the real estate. And no additional filing is necessary to void the unfair agreements or to clear the public records.

Further, the property owner of the real estate may collect actual damages, costs and attorneys’ fees resulting from the filing of the contract. Such contracts are expressly stated to be in violation of the South Carolina Unfair Trade Practices Act.

Contact your friendly title insurance company underwriter if you have questions about these documents, but these documents should no longer create title problems for South Carolina dirt lawyers. Some things do work out as they should!

Representing elder clients can be tricky

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Dirt lawyers may be in the best position to protect elders in real estate transactions

Elderly persons should be treasured, not abused! And, as real estate lawyers, we may be in a particular position to guard against abuses.

Elder abuse often happens at the hands of family members or “friends” who, because of the vulnerabilities associated with age, such as mental impairment, are able to employ methods such as theft, fraud, forgery, extortion and the wrongful use of powers of attorney to separate an elderly person from property or funds.

Reflect upon the numbers of stories you have heard in your community about elderly persons falling prey to telephone scams. Those same individuals would not have succumbed in their prime. Even with all mental facilities in place, they don’t hear as well, they don’t keep up with changes in technology, and they are unable to keep up with fraud trends we all hear about every day.

Here are some signs of elder financial abuse that you may be able to detect in your office:

  • Sudden changes in an elderly person’s estate planning documents;
  • Changes made in the title to properties in favor of a “friend;
  • Home health aide, housekeeper or other person is added to the accounts of an elderly person or is receiving an assignment of proceeds;
  • Family members or trusted “friend” discourages or interferes with direct communications with an elderly person involved in a transaction;
  • The older person seems unable to comprehend the financial implications of the transaction;
  • The older person signs documents without seemingly knowing or understanding what is being signed;
  • A power of attorney is involved. I’ve told this story many times, but I know a wonderful claims attorney who called powers of attorney “instruments of the devil”. Powers of attorney are extremely useful tools in the real estate world, but we should always exercise caution when they are used, especially when an elderly person is involved;
  • Anyone seems to be forcing the elderly person to act;
  • Numerous unpaid bills may be a clue that someone is diverting the money designated for the daily living of the elderly person;
  • Promises of lifelong care in exchange for property;
  • The elderly person complains that he or she used to have money but doesn’t understand why the money is no longer available;
  • The caregiver is evasive about the specifics of the transaction in the presence of the elderly person;
  • The elderly person seems fearful or reticent to speak in front of a family member, friend, loan officer, real estate agent or anyone involved in the transaction.
  • The accompanying family member or caregiver attempts to prevent the elderly person from interacting with others.
  • The elderly person and the family member or caregiver give conflicting accounts of the transaction, the expenditures or the financial need.
  • The elderly person appears disheveled or without proper care even though he or she has adequate financial resources.

Be mindful of these common-sense suggestions when any of your real estate transactions involve elderly persons. Think of them as you would want someone to think of your parents or aunts and uncles. Be careful to protect their interests. Proceed with caution!

Elders may also be the victims of predatory lending. Elders who own their homes and have built up equity over time become targets of predatory loan originators who pressure them in to high-interest loans that they may not be able to repay. Older homeowners are often persuaded to borrow money through home equity loans for home repairs, debt consolidation or to pay health care costs. These loans may be sold as “miracle financial cures” and are often packed with excessive fees, costly mortgage insurance and balloon payments.

Always discuss transactions directly with your elderly clients. Ask them pointed questions to make sure they understand the transaction.

And, as always, employ your instincts and your common sense.