- What types of deeds are recognized in South Carolina?
- What types of estate planning deeds does South Carolina use?
- Where are deeds filed in South Carolina?
- What is the cost to file a South Carolina deed?
- What is South Carolina’s transfer tax?
- Which deeds are exempt from South Carolina’s transfer tax?
- Methods for Multiple Owners to Hold Title to South Carolina Real Estate
- Spousal Ownership of Real Estate in South Carolina
- Other Considerations for South Carolina Deeds
- South Carolina Deeds to and From Trusts
- South Carolina Deeds to and From Corporations
- South Carolina Deeds to and from LLCs
- South Carolina Deeds to and From Partnerships
What types of deeds are recognized in South Carolina?
South Carolina law recognizes three general deed forms for transferring real estate ownership. The principal distinction between the three forms is the warranty of title provided by each. Warranty of title is essentially a guaranty—composed of one or more covenants of title or covenants of warranty from the current owner—that a deed transfers good title subject to no undisclosed title defects.1 Title defects are problems with a property’s title—like outstanding liens, adverse claims, or a faulty chain of title—that reduce the property’s value or marketability.2
A South Carolina deed can provide greater, lesser, or no warranty of title—depending on the deed form and the language of the specific deed. South Carolina’s deed forms are—from strongest to weakest warranty—as follows: general warranty deed, special warranty deed, and quitclaim deed.
South Carolina Warranty Deed Form
A South Carolina general warranty deed—or just warranty deed—transfers real estate with complete warranty of title.3 The current owner guarantees a valid title with no defects—regardless of when a defect arose—and bears all risk of unknown title problems emerging in the future. The new owner can sue the current owner for breach of warranty if the new owner suffers financial injury caused by a problem with the property’s title.4
South Carolina Special Warranty Deed Form
A South Carolina special warranty deed offers some warranty of title, but the warranty is limited to the period while the current owner held title to the property.5 The current owner agrees to defend the transferred title against adverse claims that arose during the current owner’s ownership period.6 The property owner who issues a special warranty deed and the new owner who accepts it share the risk of unknown title defects—depending on when a particular defect arose. Special warranty deeds are also called limited warranty deeds or—in other states—grant deeds or covenant deeds.
South Carolina Quitclaim Deed Form
South Carolina quitclaim deeds offer no warranty of title.7 A quitclaim deed conveys whatever title or property interest the current owner can lawfully transfer—with no promises as to the quality or existence of the transferred interest.8 The person signing a quitclaim deed releases whatever interest the signer has, and the new owner bears all risk of problems with the property’s title.
What types of estate planning deeds does South Carolina use?
South Carolina recognizes a few other deed forms reserved for more specialized purposes than warranty deeds, special warranty deeds, and quitclaim deeds. Life estate deeds—for example—can be useful in estate planning, as they allow a real estate owner to create an ownership interest that lasts until the interest holder’s death and a future interest granting subsequent ownership.9 A property owner can reserve a life estate and grant a remainder interest giving the remainderman possession when the owner dies—allowing the property to bypass probate.10
South Carolina does not recognize transfer-on-death (TOD) deeds.11 TOD deeds—where recognized—serve a purpose similar to life estate deeds without restricting the owner’s property rights during life.
Another South Carolina deed form relevant to estate planning is called a deed of distribution. An executor or personal representative of a deceased owner’s estate uses a deed of distribution to formally convey title to the deceased owner’s heir or a devisee named in the owner’s will.12 Personal representatives issue deeds of distribution in connection with the formal, court-supervised probate administration process.
Where are deeds filed in South Carolina?
South Carolina deeds are filed for recording with the office of the register of deeds for the county where the real estate is located.13 The register of deeds is a separate office in most larger counties and a division of the clerk of court’s office in most smaller counties.14
The South Carolina Legislature changed the name of county land records offices to register of deeds in 1998. The legislation changing the name allowed existing officeholders to continue using the traditional title register mesne conveyance (RMC) while they remained in office. Registers of deeds in Charleston and Aiken Counties still use register mesne conveyance.
The register of deeds indexes recorded deeds by prior and new owner name, parcel, date, and book-and-page number.15 A recorded deed provides constructive notice of the transaction to creditors, purchasers, and other third parties.16
South Carolina law authorizes registers of deeds to accept deeds for recording electronically.17 An electronically filed deed satisfies the statutory requirement for an original signature if it includes an electronic signature.18 Not all counties have adopted electronic filing, and counties that have must still accept deeds filed in paper form.19
What is the cost to file a South Carolina deed?
South Carolina registers of deeds collect a filing fee of $15.00 for recording a deed—regardless of the number of pages.20 A separate deed recording fee—comparable to a transfer tax in other states—is also due when filing most South Carolina deeds.21
What is South Carolina’s transfer tax?
South Carolina charges a transfer tax—called a deed recording fee—for the privilege of recording a deed transferring real estate to another person.22 The fee amount is based on the real estate’s value and must be paid to the register of deeds before recording.23 The prior owner conveying the property is primarily responsible for payment, and the new owner is secondarily responsible.24
The deed-recording fee rate is $1.85 for each $500.00 of the real estate’s value.25 A property’s value is usually the consideration exchanged for the transfer—including cash, property, debt forgiveness, debt assumption, or surrendering of a right.26 Value is the property’s fair market value if the deed transfers real estate from a business entity to an owner of the entity or from a trust to a beneficiary.27 Local governments may charge additional amounts under their home rule authority.28
The new owner or other person requesting recording must present to the register of deeds a completed affidavit for taxable or exempt transfers when filing a South Carolina deed.29 The affidavit calculates the deed recording fee—attesting to the property’s value or the reason the deed is tax-exempt. A “responsible person connected with the transaction” must sign the completed form.30
Most counties publish affidavit forms for use in that county—many of which are available online.31 Registers of deeds have statutory discretion to waive the affidavit requirement.32
Which deeds are exempt from South Carolina’s transfer tax?
South Carolina’s deed recording fee statute expressly exempts deeds of distribution.33 A deed of distribution is a deed conveying real estate from a deceased owner’s estate to an heir (if the owner left no will) or to a devisee (if the owner left a will). The exemption also covers comparable deeds conveying title from a deceased settlor’s trust to a designated beneficiary. An affidavit for taxable or exempt transfers need not accompany a deed of distribution.
Fifteen additional categories of deeds are exempt from South Carolina’s deed recording fee under S.C. Code §12-24-40.
- Deeds transferring real estate valued at $100.00 or less;
- Deeds transferring real estate to a government agency including school districts;
- Deeds exempt from transfer tax under the U.S. or state constitution or laws;
- Deeds transferring real estate in which no gain or loss is realized for tax purposes;
- Transfers for partitions of real estate if no consideration is paid other than real estate interests exchanged to effect the partition;
- Transfer by a licensed cemetery company of an individual grave space;
- Deeds that constitute a contract for timber to be cut;
- Deeds transferring real estate to a business entity or trust to become an owner or beneficiary of the entity or trust—as long as no additional consideration is exchanged;
- Deeds transferring real estate from a family partnership or family trust to a partner or beneficiary—as long as the recipient provides no additional consideration for the transfer;
- Deeds relating to a statutory merger or consolidation of a corporation;
- Deeds relating to a merger or consolidation of a partnership;
- Deeds correcting a prior deed or confirming title already held by the person receiving the deed;
- Deeds conveying real estate to a mortgage holder in foreclosure proceedings or deeds in lieu of foreclosure;
- Transfers from an agent to a principal if the property was purchased by the agent using the principal’s funds; and
- Certain transfers of facilities for transmitting electricity.
Methods for Multiple Owners to Hold Title to South Carolina Real Estate
South Carolina law gives co-owners several options for holding title to real estate. The deed through which property owners take title should specify the form oF co-ownership—though South Carolina property owners may execute and record a new deed designating a new ownership method.34
Tenancy in Common
Tenancy in common is the simplest form of co-ownership and is the default form in South Carolina.35 Tenants in common each hold separate fractional shares of the real estate—which they can transfer independently during life or by will. A deed transferring South Carolina real estate to two or more co-owners creates a tenancy in common unless the deed expressly provides otherwise.
Joint tenants mutually hold an undivided interest in a co-owned property’s title.36 Joint tenancy’s essential characteristic is the right of survivorship—which causes a deceased joint tenant’s share to vest in the surviving owner automatically at death.37 A deed creating a joint tenancy in South Carolina real estate must declare that the new co-owners receive the property as joint tenants with right of survivorship and not as tenants in common—or substantially similar phrasing.38
A joint tenant cannot devise a joint-tenancy interest by will because the interest never becomes part of a deceased co-owner’s probate estate due to the right of survivorship. Estate plans—with that feature in mind—sometimes use joint tenancies as a means of transferring real estate outside probate. A surviving joint tenant need only file with the register of deeds a certified copy of the deceased owner’s death certificate to confirm that the surviving owner holds undivided title.39
Tenancy in Common with Right of Survivorship
South Carolina recognizes a rarely-used co-ownership form called tenancy in common with right of survivorship (TICWROS). The co-owners are tenants in common with separate fractional interests during life. Each co-owner holds a contingent survivorship interest in the other owner’s share so that—when a co-owner dies—the deceased owner’s interest vests in the survivor. Survivorship interests in a TICWROS are effectively indestructible and are not severed if a co-owner transfers an interest—unlike a joint tenancy.
TICWROS is derived from a South Carolina Supreme Court case rather than a statute.40 South Carolina deeds creating TICWROS—which are rare—must explicitly declare that the new owners are tenants in common with a right of survivorship.
Ownership in Trust
Co-owners of South Carolina real estate may elect to hold title through a trust. The current owner executes a trust instrument naming a trustee and identifying the co-owners as beneficiaries.41 The owner then conveys the real estate to the trust by recording a deed in favor of the trust and a certificate of trust establishing the trust’s existence.42
Spousal Ownership of Real Estate in South Carolina
South Carolina spouses typically co-own real estate as joint tenants with right of survivorship—though spouses can also be tenants in common or co-beneficiaries of a trust. A joint tenancy between spouses automatically reverts to a tenancy in common if the couple divorces—unless a court order provides differently.43
South Carolina does not recognize tenancy by the entirety—a joint-ownership method reserved for married spouses.44 Tenancy by the entirety—in states that recognize it—works similarly to joint tenancy, but with additional protection against creditor claims.
The South Carolina Code includes numerous other rules affecting property ownership and estate planning when an owner is married. Noteworthy rules governing married property owners include the following:
- Community Property. South Carolina is not a community-property South Carolina law grants a married spouse rights in marital property owned by the other spouse and acquired during the couple’s marriage. However, spousal marital-property rights only become operative in South Carolina if a spouse files divorce proceedings or related marital litigation.45
- Dower and Curtsey. South Carolina no longer recognizes traditional rights of dower and curtsey—which previously gave a spouse an interest in property owned by the other spouse.46
- Homesteads. South Carolina’s homestead laws shield from creditors the value of an individual’s residence up to $50,000—adjusted for inflation every two years.47 Some states require a non-owner spouse to consent to a transfer of a married couple’s homestead by co-signing the deed—even if only the other spouse owns the property.48 South Carolina does not have that requirement. A married person who individually owns South Carolina real estate has the same power to convey the property as if the owner were unmarried.49
- Spousal Elective Share. South Carolina’s spousal elective share statute guarantees a surviving spouse an interest of at least one-third of the deceased spouse’s assets—including real estate—even if the deceased spouse’s will provides a smaller share.50 The purpose of the elective share—which a spouse can waive—is to protect against disinheritance of a spouse by will. If the deceased spouse is intestate (i.e., leaves no will), the surviving spouse’s share depends on the deceased spouse’s other close family members. The surviving spouse receives the entire estate if the deceased spouse has no surviving descendants. If the deceased spouse leaves surviving children or grandchildren, the surviving spouse’s share is one-half of the estate.51
Other Considerations for South Carolina Deeds
South Carolina’s real estate laws largely contemplate ownership of real estate by individuals.52 Entities, though, can also own, buy, and sell South Carolina real estate. A South Carolina deed involving an entity—such as a corporation or trust—must comply with the rules applying to that specific type of entity.
South Carolina Deeds to and From Trusts
The South Carolina Trust Code provides wide latitude for the administration of trusts.53 A trustee—unless restricted by the trust instrument—has the same powers over trust-owned property as an individual owner.54 A trustee can sell real estate owned by the trust and execute a deed on the trust’s behalf.55 A deed signed by a trustee should note that the trustee is signing as trustee and not in his or her individual capacity.
A trust that owns South Carolina real estate must be evidenced by a written instrument signed by the person who created the trust—the settlor.56 Deeds conveying South Carolina real estate to a trust need not identify the trust’s beneficiaries but are typically accompanied by a certificate of trust.57
A certificate of trust gives third parties constructive notice of the trust’s existence and general characteristics.58 The trustee executes and acknowledges the certificate of trust before a notary and records it with the register of deeds of the county where the trust owns real estate.59
South Carolina Deeds to and From Corporations
A South Carolina corporation has legal authority to purchase, own, sell, or mortgage real estate in the corporation’s name.60 Corporations act through or under the direction of their boards of directors.61 A corporate officer—acting under authority granted in the corporation’s bylaws or delegated by the board—typically signs a deed for a corporation.62 South Carolina law does not require that any specific officer sign—though a deed should identify the signing officer’s title in the signature block and acknowledgment.
A corporation whose name changes due to merger, conversion, or a simple name-change must record notice of the change with the register of deeds of any county where the corporation owns real estate.63
South Carolina Deeds to and from LLCs
Limited liability companies are the most popular entity form for holding title to investment real estate in South Carolina. An out-of-state LLC that owns income-producing South Carolina real estate must be registered with the South Carolina Secretary of State’s office.64
The appropriate person to sign a deed for an LLC depends on the company’s management structure. Members sign for member-managed LLCs, and managers sign for manager-managed LLCs—unless a company’s articles of organization provide otherwise.65
South Carolina Deeds to and From Partnerships
South Carolina recognizes two partnership forms—general partnership and limited partnership (LP)—both of which can own South Carolina real estate.66 General partnerships have only one class of partners—called general partners or just partners. General partners have the authority to act as agents of a partnership.67 Any general partner can sign a deed conveying property held in a partnership’s name.68 A deed conveying property titled in the name of a particular partner must be signed by that partner.69
Limited partnerships have both general partners and limited partners.70 An LP’s general partners participate in ordinary operations.71 Limited partners have a financial stake in the partnership but are not involved in day-to-day operations.72
An LP’s general partners can sign a deed for the partnership under the same standards as partners of a general partnership.73 A limited partner’s status as a limited partner alone is insufficient authority to execute a deed for the partnership.
An LP must record an affidavit with information about the LP in the register of deeds of any county where the LP owns real estate. The affidavit identifies the LP’s name, the location where its certificate of limited partnership is filed, and the names of the LP’s general partners empowered to execute deeds on the LP’s behalf.74
- See Bennett v. Investors Title Ins. Co., 635 S.E. 2d 660 (S.C. Ct. App. 2006).
- See S.C. Code §38-1-20(59).
- S.C. Code §27-7-10.
- Morris v. Lain, 174 S.E.2d 590 (S.C. 1934).
- Knotts v. Joiner, 59 S.E. 2d 850 (S.C. 1950).
- Bennett v. Investors Title Ins. Co., 635 S.E. 2d 660 (S.C. Ct. App. 2006), citing Black’s Law Dictionary 1581 (7th ed. 1999).
- Bennett v. Investors Title Ins. Co., 635 S.E. 2d 660 (S.C. Ct. App. 2006).
- Mulherin-Howell v. Cobb, 608 S.E. 2d 587 (S.C. Ct. App. 2005).
- S.C. Code §27-5-130(D).
- Glasgow v. Glasgow, 70 S.E.2d 432 (S.C. 1952).
- First Union Nat’l Bank of S.C. v. Shealy, 479 S.E.2d 846 (S.C. Ct. App. 1996) (a property owner may not use a deed to transfer an interest which will take effect after the owner’s death).
- See S.C. Code §62-3-907.
- S.C. Code §30-5-90.
- See S.C. Clerk of Court Manual, §8.0 (S.C. Sup. Ct., May 21, 2014).
- S.C. Code Regs. §12-501.1.
- S.C. Code §30-7-10.
- S.C. Code §30-6-40(b)(2).
- S.C. Code §30-6-30(b); see also S.C. Code §30-6-20(5) (“‘Electronic signature’” means an electronic sound, symbol, or process attached to or logically associated with a document and executed or adopted by a person with the intent to sign the document.”
- S.C. Code §30-6-40(b)(4).
- S.C. Code §8-21-310(A)(1).
- S.C. Code §12-24-10.
- S.C. Code §12-24-10.
- S.C. Code §12-24-60.
- S.C. Code §12-24-20(A).
- S.C. Code §12-24-10(A).
- S.C. Code §12-24-30(A).
- S.C. Code §12-24-30(A).
- Williams v. Town of Hilton Head Island, 429 S.E.2d 802 (S.C. 1993).
- S.C. Code §12-24-70.
- S.C. Code §12-24-70(A)(1).
- See, e.g., Spartanburg County; Lexington County; Beaufort County.
- S.C. Code §12-24-70(A)(1).
- S.C. Code §12-24-10(B).
- S.C. Code §27-7-40(a)(v) and (ix).
- See Free v. Sandifer, 126 S.E. 521 (S.C. 1925).
- S.C. Code §27-7-40(a).
- S.C. Code §27-7-40(a)(i).
- S.C. Code §27-7-40(a).
- S.C. Code §27-7-40(b).
- Smith v. Cutler, 623 S.E.2d 644 (S.C. 2005).
- See S.C. Code §62-7-402.
- S.C. Code §62-7-1013(j).
- S.C. Code §27-7-40(a)(vii).
- See S.C. Code §27-7-40(c).
- S.C. Code §20-3-630.
- The South Carolina Legislature repealed former S.C. Code §21-5-10 governing dower and curtesy rights in 1985.
- See S.C. Code §15-41-30.
- See, e.g., Okla. Stat. §16-4(A); Wis. Stat. §706.02(1)(f).
- S.C. Code §20-5-20.
- S.C. Code §62-2-201.
- S.C. Code §62-2-102(1) and (2).
- See, e.g., S.C. Code §27-7-10.
- See S.C. Code, Title 62, Art. 7.
- S.C. Code §62-7-815.
- S.C. Code §62-7-816(2) and (25).
- S.C. Code §62-7-401.
- S.C. Code §62-7-1013(j).
- See S.C. Code §62-7-1013(k) (South Carolina statutory certificate of trust form).
- S.C. Code §62-7-1013(j).
- S.C. Code §33-3-102(4) and (5).
- S.C. Code §33-8-101.
- S.C. Code §33-8-410.
- S.C. Code §33-4-104(a).
- S.C. Code §33-44-1003(b).
- S.C. Code §33-44-301(a – c).
- S.C. Code §33-41-220.
- S.C. Code §33-41-310(1).
- S.C. Code §33-41-320(1).
- S.C. Code §33-41-320(3).
- S.C. Code §33-42-20(5) and (6).
- S.C. Code §33-42-630(a).
- S.C. Code §33-42-430.
- S.C. Code §33-42-630(a); S.C. Code §33-41-320(1).
- S.C. Code §33-42-300.