Chicago Title

Privacy Protection Acts set to take effect January 2026

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Our story began when Governor McMaster signed Act 56 of 2023, commonly known as the Law Enforcement Personal Privacy Protection Act and the Judicial Personal Privacy Protection Act. This Act represented a significant legislative development at the intersection of personal privacy and public access to real property records. While the goal of this legislation was to protect the privacy of law enforcement officers and judges, it carried important implications for the practice of real estate law, particularly in how attorneys conduct title examinations, advise clients, and navigate public records. Many other states had enacted similar legislation with mixed results. “The Redaction Bill,” as passed, also imposed significant burdens on county offices. Registrars needed a system of redacting information upon request, yet it was unclear how someone who needed access to the information could obtain it. 

The Redaction Bill grants active and former law enforcement officers and judicial employees to right to request redaction of personal information from publicly accessible state and local government websites. It was designed to protect these public servants from targeted harassment or threats. The redacted information includes names and home addresses, which are vital to maintaining the integrity of real property records. 

For those in the title industry, the Redaction Bill posed an immediate concern: how would the redaction of identifying information affect title searches, chain of title evaluations, or the ability to confirm ownership and encumbrances? County recorders and advocacy groups such as the Palmetto Land Title Association urged the general assembly to slow down and consider changing the bill to accomplish its main objective while minimizing its impact on real estate transactions. Despite these warnings, the legislature pushed the Redaction Bill through to the Governor’s desk with an effective date of July 1, 2024. 

For attorneys handling real estate transactions, the redaction of names and property identifiers raises a number of legal and practical issues. First and foremost is the risk to title integrity. If an individual’s name or parcel ID is redacted from the public record, attorneys may face increased difficulty in confirming ownership, assessing liens, or determining if any litigation is pending involving the property. This difficulty may increase the time and cost of due diligence and could expose clients to hidden encumbrances or title defects.

Moreover, attorneys acting as title agents or representing lenders could be placed in a precarious position when disbursing closing proceeds based on incomplete or obscured information. The redaction of key ownership data may also affect notice requirements under state law. For example, if the name on a deed is completely redacted, then how is a title examiner supposed to verify the ownership of the property they are searching? 

Finally, county officials—such as registrars of deeds and clerks of court—may each adopt different redaction protocols in the absence of a unified state-level system. This lack of consistency could result in a patchwork of record keeping practices, with varying impacts depending on jurisdiction. 

Despite pushing through the Redaction Bill, legislators were amenable to working with concerned groups to address the concerns raised by this bill. Recognizing that a fix was needed, the SC State Senate added a provision to the budget bill delaying the effective date to July 1, 2025, allowing extra time to make the needed changes.  Initially introduced as Senate Bill 126, Act 4 of 2025 (“Fix Bill”) was signed into law just last month.  Most critically, the Fix Bill changed “redaction” to “restriction”. The Fix Bill also limits the definition of “Disclosed Records” to those that are placed on a publicly available internet website. This clarification means that names and tax map numbers must still appear where they are embedded in formal documents—such as deeds, mortgages, easements, and affidavits—even if that information is restricted from online directory search results. This crucial carve-out preserves the reliability of title records and ensures that attorneys can still conduct necessary due diligence using official sources.  The final key change of the Bill is that it named certain people who may still access the restricted information, specifically including title insurers, their affiliates, or title insurance agents and agencies.

The Fix Bill delays the effective date to January 1, 2026, giving government agencies extra time to establish procedures, and ensuring that the real estate legal community has an opportunity to adjust workflows, educate staff, and advise clients on potential implications. It will be interesting to see how each of the counties handles the restriction of information within their own systems.

What Should Attorneys Do Now ?

Realtors and real estate attorneys will likely be the first to be asked about this bill and how one may avail themselves of this privacy protection. In addition to knowing about this Bill in general, South Carolina closing attorneys should begin reviewing internal procedures and client advisories to prepare for the January 2026 implementation. While we don’t yet know the mechanics each county will be using to restrict information, some key considerations include:

  • Title Search Protocols: Update search procedures to account for redacted records. Train staff to request and cross-reference official document images, not just searchable indexes.
  • Client Education: Inform institutional clients, especially lenders and developers, about the potential for privacy-related gaps in online records and the need for more thorough due diligence.
  • Engagement with Recorders: Develop working relationships with local registers of deeds to understand how each county plans to implement redaction requests and what access will be retained through in-office systems.
  • Legislative Monitoring: Stay informed about any additional regulations or guidance issued by the state to refine implementation, as further clarification may come through administrative rulemaking. 

For real estate attorneys, the Fix Bill introduces both challenges and obligations. While it mitigates the most serious risks to property records, attorneys must remain vigilant in adapting their practices to protect clients and ensure the continued reliability of title. A proactive approach built on awareness, communication, and procedural readiness will be essential as these laws take full effect. This journey also highlights the importance of advocacy groups such as the Palmetto Land Title Association and their work to protect the title industry in South Carolina.

It’s the little things

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Most real estate practitioners can relate to the experience of getting that call or email from a real estate agent, saying that a nice little deal is coming our way. The buyer and seller have already signed a contract and set a closing date. There may be some “little issues” that will need to be worked out before closing, but that should not be a problem. Right?

Often, a lawyer has been involved in preparing the contract or advising the parties before that call comes in. As often as not, those “little issues” turn out to be significant, and some can even derail a closing and pit the seller and purchaser against each other. The South Carolina Court of Appeals recently issued its opinion in the case of Anderson v. Pearson, Appellate Case 2023-001897 (Ct. App., 2025) discussing a case where there were, in fact, some big issues. We are left to wonder how different the outcome might have been if an attorney had been consulted in drafting the contract and advising the parties as to its terms.

The basic facts of the case are that Pearson (together with some family members) owned acreage in Spartanburg County, on Lake Cooley. This consisted of one parcel which Anderson agreed to buy (and which the parties chose to refer to as the “twenty-acre parcel”), as well as another nine-acre parcel next to it. Anderson (who owned property adjacent to Pearson’s) and Pearson, communicating through a broker, negotiated and agreed to some basic contract terms including a purchase price and closing date. Other details, such as whether the property was to be defined in a new survey, and whose responsibility it would be to get a survey, were not included in the contract. The contract was, however, clear on the inclusion of a “time is of the essence”, merger, and non-reliance clauses. The contract included the (not very helpful) comment that “[b]rokers recommend Buyer have Property surveyed . .  .”

After depositing her earnest money, the record indicates that Anderson continued to communicate with Pearson via the broker, and that Pearson indicated multiple times that he was obtaining a survey of the 20 acres in order to address the placement of an access route that would be needed to get to and from the nine-acre parcel which he was not selling. Communications went back and forth for some time, with Pearson never providing a copy of the survey, and Anderson continuing to ask for updates. Pearson applied for mortgage financing through AgSouth, but the record indicates that she had not provided all the items (such as a title commitment or a survey) that AgSouth would require to make the loan.  Eventually, the contract closing date came and went. The broker told Anderson that Pearson was not returning her calls or texts. Eventually, several weeks later, Pearson told the broker “We are building on the property ourself. We no longer want to sell.”  Turns out the Pearsons had actually gotten a survey but chose not to share it with Anderson. And the Pearsons had determined that they could sell the property to a developer for more than twice what Anderson had agreed to pay.

Some months later, Anderson filed suit for specific performance. At summary judgment, the Master in Equity conducted a trial and entered a judgment granting Anderson’s request for specific performance. Anderson offered evidence at trial concerning communications about the survey, which were not reflected in the written contract. A significant ruling by the Master in reaching her decision was that Pearson should be equitably estopped from asserting the Statute of Frauds to exclude Anderson’s evidence of those communications. Pearson appealed, raising several issues on appeal.

The Court of Appeals reversed the Master’s order, focusing on the Master’s application of the Statute of Frauds and equitable estoppel. Ultimately, the Court of Appeals found that Anderson’s reliance on Pearson’s communications was not reasonable. The Court of Appeals believed that Anderson should have realized that Pearson was delaying, and gotten her own survey. Additionally, the Court of Appeals expressed its view that Anderson did not change her position in reliance on Pearson’s communications about the survey, and since detrimental reliance is an element of equitable estoppel, the Court of Appeals held the Master erred in finding that equitable estoppel should apply to Pearson in his assertion of the Statute of Frauds.

As additional grounds, the Court of Appeals opined that since the contract did not require Pearson to provide a survey, the merger and non-reliance clauses weighed in Pearson’s favor on that point. The Court of Appeals proposed that the Master should have applied the parol evidence rule to Anderson’s offer of communications outside the contract itself. Further, the “time of the essence” clause, in the Court of Appeals’ view, meant that since the contract had expired by its own terms, and Anderson had not demonstrated that she had been able to timely perform her obligations under the contract (i.e. she did not show that she had the cash ready to pay the purchase price) specific performance was not available as a remedy. 

This case may be a good example to mention to real estate agents and brokers (as well as clients) to demonstrate the value of a clearly drafted contract and of legal advice from a seasoned real estate attorney as to contract terms.

Next steps …

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It is difficult to follow Claire Manning in any aspect of her distinguished career, but it is a truly daunting task to step in for the author of the blog of record for the South Carolina real estate community. Every week, Claire wrote about a diverse range of topics with her unique brand of clarity, style and wit and that is quite a lot for anyone to live up to.

Filling this void with just one person seemed impossible, so Chicago Title has dedicated a entire legion of our best men and women to this task. The Chicago Title underwriting team will now collectively try to add up to one Claire. A daunting task, but this is the business we’ve chosen and these are the subjects that are most dear to our professional hearts.  

We hope that our team’s eclectic set of work experiences and interest, will come together to keep you informed, entertained and engaged in the current happenings impacting dirt law in South Carolina and beyond. 

Thank you, Claire

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For more than three decades, Claire Manning has been a trusted voice in South Carolina’s real estate law community. Ten years ago, Claire decided to start writing a real estate law blog she titled “Let’s Talk Dirt” to educate and engage lawyers, paralegals, and title agents on the ever-evolving landscape of real estate law and title insurance. With an impressive 518 posts and 284,000 views, her dedication to keeping the industry informed is nothing short of remarkable. In fact, Claire has continued to blog regularly even after she retired in 2021!

Now, as she steps away from her role as blog editor and hands the reins over to the Chicago Title South Carolina underwriters, we want to take a moment to say: Thank you, Claire.

A Legacy of Knowledge and Service

Claire’s ability to break down complex legal topics into clear, digestible insights has been invaluable. Whether it was legislative updates, case law interpretations, or practical guidance on day-to-day title issues, her posts provided a reliable resource for professionals across the state.

Her writing was more than just informative—it was engaging and relatable. She had a way of making even the driest legal topics feel approachable, sprinkling in humor and real-world applications that made learning enjoyable. It’s no surprise that Let’s Talk Dirt became a go-to source for so many in the industry.

More Than a Blog—A Community

One of Claire’s greatest accomplishments was fostering a sense of community. Through her blog, she created a space where real estate professionals could stay connected, share insights, and navigate challenges together. She never shied away from tackling tough topics, and she always welcomed discussion and questions.

Her impact goes beyond the blog itself. Claire has been a mentor, a leader, and a resource to so many in the industry. She has always been generous with her knowledge and time, ensuring that South Carolina’s real estate professionals had the tools and information they needed to serve their clients with confidence.

The Future of Let’s Talk Dirt

Though Claire is stepping away as editor, her legacy continues. Chicago Title’s South Carolina underwriters and attorneys will carry on the blog’s mission, ensuring that the industry remains informed and engaged. And while Claire may no longer be writing the posts, her influence will still be felt in every update and insight shared.

To Claire—thank you for your years of dedication, your expertise, and your passion for educating the real estate law community. Your contributions have made a lasting impact, and your work will continue to benefit professionals across the state for years to come.

We wish you all the best in your next chapter and hope you take great pride in the incredible resource you’ve built. Let’s Talk Dirt wouldn’t be what it is today without you!

For your holiday reading pleasure … here’s another drafting nightmare case, dirt lawyers

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South Carolina’s Supreme Court has invalidated an arbitration agreement in a residential home purchase contract because of a sentence found to run afoul of public policy*. The homebuyers are free to pursue their lawsuit against the home builder.

Amanda and Jay Huskins bought a house from Mungo Homes. The arbitration section in the purchase contract included this sentence:

“Each and every demand for arbitration shall be made within ninety (90) days after the claim, dispute or other matter in question has arisen, except that any claim, dispute or matter in question not asserted within said time periods shall be deem waived and forever barred.”

The Court held that it is undisputed that this clause shortened the statute of limitations for any claim to the ninety-day period. Mungo conceded that this provision ran afoul of South Carolina Code §15-3-140 (2005), which forbids and renders void contract clauses attempting to shorten the legal statute of limitations.

The Huskins brought this lawsuit against Mungo, raising various claims related to the sale. Mungo asked the Circuit Court to dismiss the complaint and compel arbitration. The Huskins countered that the arbitration clause was unconscionable and unenforceable and the lower court granted the motion to compel arbitration. The Court of Appeals held the clause was unconscionable and unenforceable but ruled the clause could be severed from the rest of the arbitration agreement and affirmed the order compelling arbitration.

The Supreme Court stated that the better view is that the clause is unenforceable because it is void and illegal as a matter of public policy. The Court further noted that the contract contained no severability provision and that Mungo’s “manipulative skirting of South Carolina public policy goes to the core of the arbitration agreement and weighs heavily against severance.”

The Court mused that it has been steadfast in protecting home buyers from unscrupulous and overreaching terms, and stated that applying severance here would erode laudable public policy. The Court, therefore, declined to sever the unconscionable provision for public policy reasons. The entire arbitration provision was held to be unenforceable. The case was remanded to the Circuit Court for further action.

Drafting contracts for corporate clients can be tricky, dirt lawyers. Read this case and similar cases carefully!

*Huskins v. Mungo Homes, LLC, South Carolina Supreme Court Opinion 28245 (December 11, 2024).

Charleston County finally agrees to implement an e-filing system

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For many years, Charleston County’s Register of Deeds Office has refused to join the growing list of South Carolina counties that offer electronic filing for land records. Dirt lawyers have scratched their heads wondering when this large county will implement a system that has proved in other counties to be efficient and economically advantageous.

Finally, Charleston ROD has announced that it has entered into a contract with a vendor to implement an electronic filing system. Initial projections are that the new system will be in place in late 2025.

Charleston has also announced that it will provide property owners the opportunity to sign up for fraud prevention services that will notify owner of any filings that may affect their properties. Similar services have been offered by national companies at a price. Other counties in South Carolina have offered similar services free of charge.

Register of Deeds Karen Hollings said in a press release that the electronic filing system will make the Register of Deeds office better organized and more efficient for the people of Charleston County.

Merry Christmas to all!

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.

Court grants nationwide injunction against enforcement of CTA

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The Corporate Transparency Act, which went into effect January 1, 2024, requires many companies to report beneficial ownership information to the United States Treasury Financial Crimes Enforcement Network (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 is 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.

But we have a huge development.

On December 3, the United District Court for the Eastern District of Texas granted a nationwide preliminary injunction that prohibits the federal government from enforcing the new law.

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.

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!

Court of Appeals holds right of first refusal unenforceable

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Heads up, dirt lawyers, this is another case dealing with drafting issues. Please read it carefully and apply its concepts the next time you are asked to draft a right of first refusal.

Crescent Homes SC, LLC v. CJN, LLC* involved a contract for CJN to develop 32 lots in a subdivision for sale to Crescent Homes. Crescent Homes would build single-family homes on these lots for sale to homebuyers. The contract referenced a “Future Phase on adjacent property owned by CJN and contained the following paragraph:

“Right of First Refusal: At the Initial Closing, (CJN) will grant to (Crescent) a right of first refusal with respect to the lots cross-hatched and shown on Exhibit ‘A-2’ as “Future Phase” and any additional lots that may from time to time be annexed or otherwise included in the Subdivision. A memorandum of such right of first refusal in a form reasonabl(y) acceptable to the Parties will be recorded in the public records of Greenville County at the Initial Closing.”

CJN did not start development of the future phase because of cost concerns. Crescent brought a lawsuit for breach of contract asserting CJN delayed the initial closing by, most significantly, failing to maintain the lots free from trash and debris. Crescent sought specific performance and other remedies.

CJN entered into a contract with Douglas Clark making termination of the right of first refusal in the Crescent contract a contingency. When CJN provided a copy of the Clark offer to Crescent, Crescent responded by offering $700,000 to purchase the property and by filing a lis pendens. Crescent notified CJN that even though the right of first refusal was binding, Crescent was not required to exercise or waive it at that time because the initial closing had not yet occurred.

Crescent asserted that the right of first refusal had not been delivered and was not capable of being validly exercised at that time. Clark withdrew his offer for reasons unrelated to this controversy.

The initial closing took place and the parties began the process of developing the lots in the first phase of the subdivision.

CJN filed a lawsuit against Crescent seeking a declaratory judgment and alleging abuse of legal process. The suit alleged that that the right of first refusal was invalid and Crescent had filed four lis pendens for the ulterior purpose of preventing the sale of the future phase property to third parties. CJN also answered Crescent’s complaint asserting counterclaims of breach of contract and quantum meruit/unjust enrichment and seeking remedies of specific performance and monetary damages.

CJN filed a motion for partial summary judgment alleging the right of first refusal was void because it constituted a restraint on the alienation of the property.  The Master denied the motion, finding factual disputes and novel issues required further inquiry.

CJN continued to market the property and obtained at least one additional offer. Crescent filed a motion to consolidate the cases. CJN amended its complaint, adding causes of action for tortious interference with a contractual relationship and unfair and deceptive trade practices.

The Master bifurcated the proceeding and tried CJN’s cause of action for a declaration that the right of first refusal was unenforceable. Crescent moved to dismiss, arguing no justiciable controversy as the matter was not ripe because the previous offers had been withdrawn.

The Master denied that motion and found the right of first refusal to be unenforceable because it was an unreasonable restraint on the alienation of an interest in land, stating “based on the language used in (the paragraph), the court is unable to interpret and/or give meaning to the parties’ agreement without substantially and significantly creating terms and conditions that the parties themselves could have and should have included.”  This appeal followed.

The Court of Appeals held that the matter was justiciable once a bona fide offer had been made. Neither party provided cases regarding ripeness in which offers were made and subsequently withdrawn.

As to the enforceability of the right of first refusal, the Court stated that such a right does restrain an owner’s power of alienation, but the question becomes whether the right unreasonably restrains alienation.

The Court cited a prior case holding that a right of first refusal was unenforceable because it failed to identify the property it encumbered, failed to contain price provisions and failed to contain procedures governing the exercise of the right. The Court found those factors present in this case and affirmed the Master’s finding of unenforceability.

Dirt lawyers, a rule against perpetuities issues was also raised against the right of first refusal, but the Court held it did not have to reach that issue. That is drafting challenge that we will save for another day. The bottom line in this case is that drafting real estate documents requires a great deal of skill and continuing legal research. Be careful out there!

*South Carolina Court of Appeals Opinion 6093 (November 20, 2024)