USA – SOUTH CAROLINA Law and Practice Contributed by: Matt Norton and Christian Kolic, K&L Gates
bursing of funds and recordation of documents. The South Carolina Supreme Court takes these requirements very seriously and, as such, a lack of South Carolina lawyer involvement may affect the enforceability of the underlying documents. During the COVID-19 pandemic, many counties in South Carolina adopted e-recording to facili - tate recording in the real property records while offices were closed, and these counties have generally kept e-recording available on a going- forward basis. An original, wet ink signed and notarised signature is still required to e-record, and when the scanned original is submitted for e-recording, a memorandum of understanding confirming that the original, wet ink signed and notarised document is in hand with the submitter is also submitted. 2.4 Real Estate Due Diligence Many aspects of real estate transactions are subject to arcane and technical rules and reg - ulations, and, as a result, it is critical to have the assistance of knowledgeable South Caro - lina counsel. With respect to title due diligence, South Carolina is one of the few states in which law firms act as title insurance agents; most South Carolina law firms are empowered to issue title insurance commitments and policies. This arrangement facilitates the negotiation of title insurance coverage and allows for integration of title insurance coverage with the closing pro - cess. For these reasons, due diligence relating to title is generally conducted by purchaser’s coun - sel, and the purchaser or its counsel is respon - sible for the title examination and obtaining title insurance. South Carolina is a filed-rate state, meaning that title insurance premiums are largely fixed by state regulation, although there may be some nego - tiation for the price of endorsements. Although
not typical, in some transactions the seller will tender a basic title commitment for review by purchaser’s counsel. Surveys Purchasers are advised to obtain new surveys meeting the standards set forth by the American Land Title Association (ALTA) and the National Society of Professional Surveyors, Inc (NSPS). These standards contain a number of option - al survey coverages and certifications; South Carolina counsel will provide guidance as to the optional provisions appropriate to the specific project. Surveys are necessary to adequately identify and locate encroachments (on or off the property), identify and locate easements and other possible title issues, and specifically locate on the property the exceptions identified in the title commitment. Zoning and Entitlement Zoning and entitlement due diligence likewise will be conducted by the purchaser’s counsel by direct contact with the applicable planning and zoning officials to obtain “zoning letter” ; this due diligence may be supplemented by a zoning report obtained from a national provider. Environmental Environmental due diligence will consist at a minimum of a Phase I environmental survey fol - lowed by a Phase II environmental survey, as necessary. Properly conducted environmental surveys may provide a purchaser with a defence against unlimited liability for existing contamina - tion on the property, which otherwise attaches to parties in the chain of record title. In order for a purchaser to obtain this defence, there are number of technical requirements that must be complied with in connection with the environ - mental surveys.
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