Property Law

Cases from Oct. 2012 to Dec. 2012

Claims arising from guaranties are legal in nature and are entitled to a jury trial.
Carolina First v. BADD, LLC, No. 5041 (S.C. Ct. App., Oct. 24, 2012) (Shearouse Adv. Sh. No. 38).

Quiet title
In an action to quiet title, a court has no authority to impose a compromise on parties that do not agree to it.
Riley v. Green, No. 5051 (S.C. Ct. App., Nov. 21, 2012) (Shearouse Adv. Sh. No. 42).

Cases from July 2012 to Oct. 2012

When there is an absence of language regarding access to an easement, the master-in-equity is allowed to consider additional evidence beyond the easement conveyance documents.
David R. Martin et al. v. Ann P. Bay et al., No. 5035 (S.C. Ct. App., Sept. 19, 2012) (Shearouse Adv. Sh. No. 33)

Eminent domain: Attorney’s fees
Under the Eminent Domain Procedure Act, in eminent domain disputes, attorney’s fees must be based on an hourly rate rather than a contingency fee agreement.
SCDOT v. Revels, No. 5010 (S.C. Ct. App., July 25, 2012) (Shearouse Adv. Sh. No. 25)

Per Rule 71(c), SCRCP, the assignee of a note and mortgage may recover the surplus funds generated by the foreclosure of a prior mortgage, even if it was not a lienholder of record at the time of the sale. Assignees are not barred from receiving the surplus funds from mortgages filed without the services of an attorney before the Court issued its opinion in Matrix Financial Services Corp. v. Frazer, 394 S.C. 134, 714 S.E.2d 532 (2011).
BAC v. Kinder, No. 27146 (S.C. Sup. Ct., July 25, 2012) (Shearouse Adv. Sh. No. 25)

Lis pendens
A lis pendens is permitted only when the action actually affects title to real property.
Carolina Park Associates v. Marino, No. 27175 (S.C. Sup. Ct., Oct. 3, 2012) (Shearouse Adv. Sh. No. 35)

Case from May 2012

Security deposits
A landlord is entitled to retain a security deposit if his tenant fails to surrender possession and stays on the premises without paying rent.
Atlantic Coast Builders & Contractors v. Lewis, No. 27044 (S.C. Sup. Ct., May 16, 2012) (Shearouse Adv. Sh. No. 17)

Cases from March 2012 to May 2012

Chain of title
Deeds which reference “as-built” plans incorporating prior revisions made during the course of a project are sufficient to establish chain of title.
North Point Development v. SCDOT, No. 4954 (S.C. Ct. App., Mar. 14, 2012) (Shearouse Adv. Sh. No. 10)

Where the covenants of a Property Owners’ Association do not convey the declarant’s rights to a property owner, he has no right to bring a complaint under the covenants.
Highland Property Owners v. Shumaker Land, No. 4952 (S.C. Ct. App., Mar. 14, 2012) (Shearouse Adv. Sh. No. 10)

Highway plan maintenance
Official highway plans do not have to be stored at the tax assessor’s office per S.C. Code Ann. Section 57-5-570 if they are alternatively stored at the Department of Transportation’s office, as the purpose of the statute is to allow easy access to information, which is possible at the Department.
North Point Development v. SCDOT, No. 4954 (S.C. Ct. App., Mar. 14, 2012) (Shearouse Adv. Sh. No. 10)

Res judicata
Res judicata
applies where a plaintiff has previously prevailed against a defendant in a title dispute, as he has good title as against that defendant. A defendant may not relitigate title based on newly-discovered documents in his chain where those documents predate the first judgment.
Yelsen Land Company v. State, No. 27103 (S.C. Sup. Ct., Mar. 14, 2012) (Shearouse Adv. Sh. No. 10)

A court may not conclusively establish title when a court order and quitclaim deeds viewed together as part of a settlement agreement are ambiguous.
City of North Myrtle Beach v. East Cherry Grove Realty, No. 27113 (S.C. Sup. Ct., Apr. 11, 2012) (Shearouse Adv. Sh. No. 13)

Cases from Oct. 2011 to Jan. 2012

In determining whether to permit erosion devices, the Department of Health and Environmental Control’s Ocean and Coastal Resource Management Division must act in the manner it deems most advantageous to the State in order to promote public health, safety and welfare; to protect public and private property from beach and shore destruction; and to ensure the continued use of tidelands, submerged lands and waters for public purposes, per S.C. Code Ann. Section 48-39-120(F).
Kiawah Dev. Partners II v. S.C. Dep’t of Health & Env’t Control, No. 27065 (S.C. Sup. Ct., Nov. 21, 2011) (Shearouse Adv. Sh. No. 41).

Public record 
The existence of an easement in the public record does not override a fraudulent misrepresentation. The purpose of the recording act is to protect innocent purchasers, not fraudulent sellers.
Moseley v. All Things Possible, No. 27074 (S.C. Sup. Ct., Dec. 12, 2011) (Shearouse Adv. Sh. No. 44).

Quiet title 
Once an estate files an action to quiet and confirm title, the circuit court is required to refer the action to a master-in-equity to first determine rightful ownership of the property and then to enter final judgment, per S.C. Code Ann. Section 15-67-60 (2005).



Major v. Penn Cmty. Servs.




, No. 4838 (S.C. Ct. App., refiled Oct. 10, 2011) (Shearouse Adv. Sh. No. 36).