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This page is a compilation of some of the recent developments in our firm’s Practice Areas. To check for updates in your area of interest, simply click on the Practice Area to your left.

Real Estate

Richland County v. Carolina Chloride, Inc., 382 S.C. 634, 677 S.E.2d 892 (Ct. App. 2009).
Opinion No. 4462, decided May 28, 2009.

The plaintiff acquired and developed a piece of property as a facility for storage and distribution of calcium chloride, a nonhazardous chemical. Prior to and during the plaintiff’s acquisition and development of the property, Richland County representatives repeatedly affirmed that the property’s zoning permitted heavy industrial use. However, when the plaintiff’s president began negotiating the sale of the business, a county representative erroneously advised that the property was zoned rural and that the current use of the property was in violation of the zoning ordinance. As a result, the potential buyers backed out of the deal. The plaintiff brought suit against Richland County, asserting multiple causes of action associated with the unsuccessful sale. The trial court granted a directed verdict to the county, but on appeal, the South Carolina Court of Appeals reversed as to the plaintiff’s negligence claim, holding that the public duty rule does not apply to common law tort claims. The court also found that the Tort Claims Act did not exempt the county from liability.

Jones v. Leagan, 384 S.C. 1, 681 S.E.2d 6 (Ct. App. 2009).
Opinion No. 4551, decided May 27, 2009.

In 2005, the plaintiff filed an action in ejectment and trespass to try title and sought to quiet title to a parcel of property. The defendants responded that they had acquired title to the property by adverse possession under color of title, and the master-in-equity agreed. On appeal, the South Carolina Court of appeals affirmed, holding that the record—which included evidence that the defendants had improved and maintained the property and paid taxes on the property since 1987—reasonably supported the master’s findings that the defendants had established continuous, hostile, open, actual, notorious, and exclusive possession of the property for a period of at least ten years.

Kiriakides v. School Dist. of Greenville County, 382 S.C. 8, 675 S.E.2d 439 (2009).
Opinion No. 26621, decided March 30, 2009.

A school district notified a property owner of its intent to institute eminent domain proceedings against his property. However, the school district never field the condemnation action with the court because the property owner filed this action challenging the school district’s right to condemn his property and seeking damages for inverse condemnation. The school district subsequently abandoned its condemnation efforts. After a bench trial, the master-in-equity ruled in favor of the school district on the grounds that the property owner’s claims were moot and that in any event he could not establish inverse condemnation. However, the master awarded attorneys’ fees to the property owner. On appeal, the South Carolina Supreme Court affirmed, holding that the mere threat of a taking was not enough to establish inverse condemnation. The court also held that the master had not abused his discretion in awarding attorneys’ fees to the property owner.

Horry County v. Ray, 382 S.C. 76, 674 S.E.2d 519 (Ct. App. 2009).
Opinion No. 4501, decided February 10, 2009.

A parcel of property was sold at a foreclosure sale, but the checks the purchaser tendered to the county turned out to be fraudulent, so the county filed a lis pendens on the property. Subsequently, the purchaser gave a mortgage on the property to a bank, which investigated the title to the property and recorded its mortgage. A few days later, the county cancelled its lis pendens. The purchaser then defaulted on the mortgage and the bank sold the property. The proceeds of the sale were held in escrow while a special referee determined whether the bank or the county was entitled to the funds. After a trial, the special referee awarded the funds to the bank, finding that the county’s lis pendens was invalid because the county did not commence a lawsuit within twenty days after filing the lis pendens, and therefore that the county’s claim did not take priority over the bank’s mortgage. On appeal, the South Carolina Court of Appeals affirmed, agreeing with the special referee that the county’s failure to file suit within twenty days after filing the lis pendens, as required by statute, rendered the lis pendens invalid. Accordingly, the lis pendens could not have provided constructive notice to the bank of the county’s claim.

Dykeman v. Wells Fargo Home Mortgage, Inc., 381 S.C. 333, 673 S.E.2d 804 (2009).
Opinion No. 26593, decided February 9, 2009.

Property owners paid off a mortgage on a piece of property, but the mortgagee did not record a mortgage satisfaction within the three-month period mandated by S.C. Code Ann. § 29-3-310. The property owners subsequently filed suit against the mortgagee seeking statutory damages and attorneys’ fees under S.C. Code Ann. § 29-3-320. The trial court granted summary judgment to the mortgagee and the South Carolina Supreme Court affirmed. The court held that section 29-3-320, as a penal statute, must be strictly construed, and therefore because the property owners merely sent a payoff check to the mortgagee and never explicitly requested that the mortgage be satisfied, they were not entitled to any recovery.

Skipper v. Perrone, 382 S.C. 53, 674 S.E.2d 510 (Ct. App. 2009).
Opinion No. 4489, decided January 27, 2009.

In 1993, the decedent signed a deed, for the stated consideration of ten dollars, conveying properties in Horry County to the defendants. The defendants recorded the deed soon thereafter and again in 1994. The decedent died in 1995, and the defendants were not beneficiaries of his will. The personal representative of the state sought to have the deed set aside on multiple grounds, including undue influence. The special referee found that the decedent was either incompetent or substantially impaired when the deed was executed and that the stated consideration was grossly inadequate. The South Carolina Court of Appeals affirmed, holding that although the party attacking a deed normally has the burden of proof, an inference of undue influence arose upon the personal representative’s presentation of evidence showing that the decedent was in a substantially weakened mental state at the time of the execution of the deed and that the stated consideration was grossly inadequate. Because the defendants failed to rebut the inference of undue influence, it was proper for the special referee to set aside the deed. The court also held that the personal representative’s delay in bringing the action did not prejudice the defendants and that the decedent’s failure to set aside the deed during his lifetime did not amount to a waiver of the right to contest the deed.

Chastain v. Hiltabidle, 381 S.C. 508, 673 S.E.2d 826 (Ct. App. 2009).
Opinion No. 4487, decided January 22, 2009.

The plaintiffs purchased a house through the defendant real estate agency. The sale was contingent upon the sellers’ completion of a disclosure statement revealing known defects in the property, which the sellers completed. After the sale, two days of rain resulted in several inches of water intrusion onto the property, causing damage to the plaintiffs’ furniture and to the property itself. The plaintiffs filed suit against the real estate agency, alleging that the disclosure statement was inaccurate or incomplete. The trial court granted summary judgment to the agency, and the plaintiffs filed a motion for reconsideration in which they argued the trial court did not issue a detailed order reflecting its findings of fact and conclusions of law, did not rule on their due process argument based on Rule 7(a), SCRCP, and did not comply with the rule that novel issues should be decided with a full and complete record. The trial court subsequently issued a seven page explanation of its decision, and the plaintiffs filed another motion for reconsideration on essentially the same grounds. The motion was denied and the plaintiffs appealed. The South Carolina Court of Appeals affirmed, holding that the plaintiffs could not show any prejudice which resulted from the agency’s alleged failure to comply with Rule 7(b)(1), SCRCP. Moreover, summary judgment was appropriate because the plaintiffs presented no evidence that the agency had actual or constructive knowledge that the disclosure statement was inaccurate or incomplete. The court also held that although the plaintiffs’ motions for reconsideration were technically insufficient to preserve the Rule 7(b)(1) issue, the court would not apply the rules of error preservation so rigidly as to bar an otherwise properly presented issue.

Windham v. Riddle, 381 S.C. 192, 672 S.E.2d 578 (2009).
Opinion No. 26586, decided January 20, 2009.

The plaintiff and the owners of an adjoining parcel of land bought their properties from a common owner. In 1992, the plaintiff and the common owner entered into an installment land sale contract which provided that the common owner would convey title to the plaintiff at the end of the repayment period. The contract also purported to reserve an easement to the common owner for irrigation purposes. However, the common owner did not actually deed the property to the plaintiff until the end of the repayment period in 1998, one year after the common owner had conveyed the adjoining parcel to the defendants. The 1998 deed, like the contract of sale, purported to reserve an easement to the common owner for irrigation purposes. The trial court found that the contract of sale had created an appurtenant easement which passed to the defendants when they purchased the adjoining parcel in 1997, but the South Carolina Supreme Court reversed. The court held that the contract of sale could not have created an easement because it did not actually transfer title to the plaintiff. The court likewise held that the 1998 deed to the plaintiff could not create an easement because the common owner had already conveyed the adjoining parcel to the defendants and therefore could not create an easement in favor of the adjoining parcel.

McGill v. Moore, 381 S.C. 179, 672 S.E.2d 571 (2009).
Opinion No. 26585, decided January 20, 2009.

A purchaser made an offer to purchase a tract of land held by multiple owners, known and unknown, by way of intestate succession and devises from wills. The purchaser’s attorney prepared a contract of sale and distributed nine identical copies of the contract to various owners. The contract provided that closing would take place within thirty days after the last contract was signed. All but one of the contracts was signed, and of the eight signed contracts, five were closed. The purchaser filed suit seeking specific performance of the three contracts which were signed but never closed, but the master-in-equity found that the contract contained a condition precedent requiring all owners to sign a contract before the closing could take place. Thus, because one of the nine contracts was never signed, the purchaser was not entitled to specific performance. On appeal, the South Carolina Supreme Court affirmed, holding that the contract contained a condition precedent which could not be waived by the purchaser and which the purchaser could not circumvent by arguing substantial compliance.

S.C. Dep’t of Transportation v. Hood, 381 S.C. 318, 672 S.E.2d 595 (Ct. App. 2009).
Opinion No. 4486, decided January 13, 2009.

The South Carolina Department of Transportation (SCDOT) filed a notice of condemnation to acquire a 3.5-acre section of property for a highway project. Subsequently, SCDOT filed this action to determine the value of the property. Prior to trial, SCDOT moved to exclude evidence of prior unaccepted offers and unexercised options to purchase the condemned property, but the trial court denied the motion. At trial, the property owner introduced evidence of an expired unexercised option to purchase the property for $30,000 per acre, and the jury ultimately awarded the property owner approximately $28,500 per acre. On appeal, the South Carolina Court of Appeals reversed, holding that evidence of an unexercised option to purchase property is not admissible as evidence of the property’s value. The court likened unexercised options to unaccepted offers, which are inadmissible for valuation purposes.

Dargan v. Tankersley, 380 S.C. 480, 671 S.E.2d 73 (2008).
Opinion No. 26574, decided December 22, 2008.

In this quiet title action, the plaintiffs sought to establish their ownership interest in a tract of land in Greenville County. However, the master-in-equity found that the defendants were the true owners of the property, ordered the plaintiffs to execute a quitclaim deed to the defendants, and awarded the defendants damages. On appeal, the South Carolina Supreme Court reversed, holding that the plaintiffs were the true owners of the property by virtue of a “catch all” provision in an earlier deed. Though the deed did not specifically convey title to the property to the plaintiffs, it conveyed “any and all other real estate owned directly by the Grantor in Greenville and Pickens Counties” to the plaintiffs. The court found that this “catch all” provision was sufficient to convey title to the disputed property.

Coker v. Cummings, 381 S.C. 45, 671 S.E.2d 383 (Ct. App. 2008).
Opinion No. 4471, decided December 18, 2008.

In this boundary line dispute, the trial court granted summary judgment to the defendants. On appeal, the defendants argued that the plaintiff’s notice of appeal was untimely. However, the South Carolina Court of Appeals held that the appeal was timely because even though a form order was entered more than thirty days before the plaintiff filed his notice of appeal, the plaintiff received notice of the order within thirty days prior to filing his notice of appeal. The court affirmed the grant of summary judgment to the defendants, holding that because the record contained nothing to dispute the defendants’ evidence that they had lived on their property with the boundaries as they claim for at least twenty years, the plaintiff had acquiesced to the new boundary lines.

Gauld v. O’Shaugnessy Realty Co., 380 S.C. 548, 671 S.E.2d 79 (Ct. App. 2008).
Opinion No. 4455, decided November 14, 2008.

The plaintiff purchased an investment property and began making renovations. She subsequently learned that a major road would soon be constructed just a few hundred feet behind the property. She brought this action against the real estate agencies involved in her purchase, alleging various causes of action arising out of the defendants’ alleged failure to disclose the planned construction of the road. The plaintiff alleged that the planned construction of the road caused a substantial diminution in the value of the property. The trial court granted summary judgment to the defendants, finding that there was no credible evidence regarding the existence or amount of damages. On appeal, the South Carolina Court of Appeals affirmed, holding that though a property owner may typically testify as to the value of his or her own property, the plaintiff’s diminution in value calculation was based on nothing more than pure conjecture or speculation.

Fox v. Moultrie, 379 S.C. 609, 666 S.E.2d 915 (2008).
Opinion No. 26546, decided September 15, 2008.

A foreclosure property which was subject to a federal tax lien was sold in a judicial sale, but the Internal Revenue Service (IRS) was not given notice of the sale. The buyer brought this quiet title action in order to obtain clear title of the property. However, the IRS appeared and argued that because it was not notified of the sale pursuant to federal law and because there had been no application to discharge the tax lien, the buyer acquired the property subject to the tax lien. The master-in-equity held that the property was subject to the federal tax lien, and the South Carolina Supreme Court affirmed. The court held that while the federal lien was subordinated to a county property tax lien, the county lien did not render the federal lien invalid. Thus, the federal lien remained valid and survived the tax sale.

McLaughlin v. Williams, 379 S.C. 451, 665 S.E.2d 667 (Ct. App. 2008).
Opinion No. 4421, decided June 30, 2008.

A buyer purchased a home and subsequently learned of defects in the home due to prior water intrusion. The buyer filed this action against the seller and both realtors in the sale, alleging claims of fraud and negligent misrepresentation based on the seller’s non-disclosure of the defects in their disclosure statement. The trial court granted summary judgment to all defendants, and the South Carolina Court of Appeals affirmed. The court found that the buyer could not prove the elements of either fraud or negligent misrepresentation because he had no right to rely upon the alleged misrepresentation or fraud in light of the information available to him prior to closing. The available information included a home inspection report and a CL-100 termite and moisture inspection report, both of which showed the existence of water damage to the home.

Sonoco Products Co. v. S.C. Dep’t of Revenue, 378 S.C. 385, 662 S.E.2d 599 (2008).
Opinion No. 26502, decided June 9, 2008.

A manufacturer sought a refund of property taxes it paid on its corporate office buildings. The office buildings, which were located across a public right-of-way from the manufacturing facility, were assessed as manufacturing-related property, which is assessed at a 10.5 percent ratio rather than the 6 percent ratio used for non-manufacturing-related property. The manufacturer argued that because the office buildings were separated from the manufacturing facility by a public road, they were not “contiguous” for purposes of S.C. Code Ann. § 12-43-220, even though the manufacturer held a fee simple interest in the road. The Department of Revenue declined to issue the refund, finding that the properties were indeed “contiguous.” The Administrative Law Court upheld the department’s decision, but the circuit court reversed. However, the South Carolina Supreme Court reversed the circuit court and reinstated the Administrative Law Court’s order. The court found that the Legislature intended the term “contiguous” in S.C. Code Ann. § 12-43-220 to be construed broadly. The court also found that the grant of an easement or right-of-way does not defeat contiguity. Thus, because there were no intervening landowners between the manufacturing facility and the office buildings, the Administrative Law Court was correct in finding that the properties were “contiguous.”

Quail Hill, LLC v. County of Richland, 379 S.C. 314, 665 S.E.2d 194 (Ct. App. 2008).
Opinion No. 4407, decided June 6, 2008.

A developer was interested in purchasing a parcel of land for development into a manufactured-home subdivision. Prior to purchasing the property, the developer’s broker met with Richland County representatives, who informed the broker that the parcel’s zoning classification permitted a manufactured-home subdivision. Nearly two years later, after the developer had begun marketing and selling lots, the county ordered the developer to stop development, saying that an error had been made and that the parcel’s zoning classification did not permit a manufactured-home subdivision. The developer sued the county, alleging equitable estoppel, negligence, negligent misrepresentation, and inverse condemnation. The trial court granted the county summary judgment on all causes of action, but the South Carolina Court of Appeals reversed as to the negligence, negligent misrepresentation, and equitable estoppel causes of action. The court found that no South Carolina precedent precluded the developer from asserting negligence or negligent misrepresentation against the county under the South Carolina Tort Claims Act, and that genuine issues of material fact existed regarding whether the county was equitably estopped from enforcing the correct zoning classification.

Murrells Inlet Corp. v. Ward, 378 S.C. 225, 662 S.E.2d 452 (Ct. App. 2008).
Opinion No. 4384, decided May 2, 2008.

A property owner subdivided her property into five separate parcels. The plat which showed the division also showed a fifty foot right-of-way to allow access to the lots. The owner conveyed one of the parcels to her son, who later defaulted on his mortgage. The parcel was sold in foreclosure to a landlord who rented the property to tenants. However, the owner had allowed the right-of-way to fall into disrepair and had placed multiple obstructions in the right-of-way. The landlord petitioned for an order directing the owner to remove the encroachments, but the owner asserted that she had never intended to create the right-of-way. The master-in-equity ordered the owner to remove the encroachments, and on appeal, the South Carolina Court of Appeals affirmed. The court held that because the deeds to the subdivided parcels referenced the plat, the plat became a part of the deeds. Therefore, any subsequent purchasers acquired the right to unobstructed use of the right-of-way to the full extent that it was indicated in the plat.

Madren v. Bradford, 378 S.C. 187, 661 S.E.2d 390 (Ct. App. 2008).
Opinion No. 4379, decided April 30, 2008.

A buyer and seller entered into a contract to buy and sell real estate. The transaction did not close on the closing date specified in the contract because the seller was performing renovations on the house situated on the property. In e-mails to the seller that were sent both before and after the specified closing date, the buyer inquired about when an appraiser could look at the house and when closing could take place. After the renovations were complete, the seller notified the buyer, who responded that he no longer wished to purchase the property. The seller sued the buyer for breach of contract and specific performance. The buyer moved to dismiss on the grounds that the seller had no contractor’s license, but the trial court denied the motion and awarded damages to the seller. The South Carolina Court of Appeals affirmed the trial court, finding that the buyer’s “no contractor’s license” defense was not appropriately pled as an affirmative defense, that evidence that the buyer expressed continued interest in the transaction beyond the specified closing date was sufficient to support a finding that he waived the closing date requirement, and that the trial court properly calculated the seller’s damages.

Wells Fargo Bank, NA v. Turner, 378 S.C. 147, 662 S.E.2d 424 (Ct. App. 2008).
Opinion No. 4376, decided April 23, 2008.

A buyer purchased a piece of property at a foreclosure sale for $3,000.00. The mortgagee moved to set aside the sale because, among other reasons, the sale price was so low as to “shock the conscience of the court.” A special referee granted the motion and set aside the sale. On appeal, the buyer argued that the special referee erred in setting aside the sale because the mortgagee had not presented any evidence of the value of the property. However, the South Carolina Court of Appeals held that the special referee did not abuse his discretion because there was evidence that the principal amount of the mortgage was approximately $85,000.00, and thus there was sufficient evidence to support the special referee’s finding that the foreclosure sale price was grossly inadequate.

Stanley v. Atlantic Title Ins. Co., 377 S.C. 405, 661 S.E.2d 62 (2008).
Opinion No. 26470, decided April 21, 2008.

After discovering that a portion of his property contained a septic drainage field which serviced another parcel of land, the plaintiff brought this action for damages against his title insurance company. At trial, the parties presented widely differing views on the method to be used in valuing the plaintiff’s damages. The master-in-equity adopted the plaintiff’s viewpoint and awarded appropriate damages. On appeal, the title insurance company argued that the master had applied the wrong measure of damages, but presented a very different valuation method that the one it had argued for at trial. Therefore, the South Carolina Supreme Court held that the title insurance company’s valuation argument had not been preserved for appellate review and affirmed the master’s ruling.

Robinson v. Estate of Harris, 378 S.C. 140, 662 S.E.2d 420 (Ct. App. 2008).
Opinion No. 4372, decided April 18, 2008.

Numerous plaintiffs filed an action to quiet title on a piece of heirs’ property, including a 0.5-acre tract that had been foreclosed upon and sold at a judicial sale. The tract was subsequently re-sold to a third party. The plaintiffs requested the foreclosure be set aside because of ineffective service of process on the mortgagors of the tract at the time it went into foreclosure. The trial judge granted summary judgment to the current owner of the tract because of his status as a bona fide purchaser for value without notice under S.C. Code Ann. § 15-39-870. On appeal, the South Carolina Court of Appeals affirmed, noting that even if service of process on the mortgagors of the tract was improper, the good-faith purchaser of the tract at the judicial sale was not affected by the irregularities in the proceedings.

Inlet Harbour v. S.C. Dep’t of Parks, Recreation and Tourism, 377 S.C. 86, 659 S.E.2d 151 (2008).
Opinion No. 26459, decided March 17, 2008.

A landowner sought a declaratory judgment limiting the scope of use of an implied easement over an access road in a residential development. The landowner had conveyed a parcel of land to a public agency many years earlier for the purpose of using the land in support of an engineering project to resolve navigability problems in a nearby waterway. After the project was completed, the agency began preparing to subdivide and sell the land for residential use. The agency argued that the deed to the land impliedly permitted it to use the access road for residential purposes, but the South Carolina Supreme Court, upon reviewing the background of the transaction and the intentions of the parties, determined that the scope of the easement over the access road was clearly for the sole purpose of maintaining the navigability of the nearby waterway, not for residential purposes.

Cetto v. LaSalle Bank Nat. Ass’n, 518 F.3d 263 (4th Cir. 2008).
Docket No. 06-1720, decided February 29, 2008.

The plaintiffs sought to rescind the refinancing of their home on the bases that their loan was a “high cost mortgage”—defined by the federal Truth in Lending Act as one in which the “points and fees” exceed 8% of the total loan amount—and that they did not receive the specific disclosures and terms to which borrowers receiving “high cost mortgages” are entitled. They argued that the settlement agent’s title search and title binder fees should be considered “points and fees” because the settlement agent was affiliated with the mortgage broker, whom they alleged was a “creditor” under the Act. However, the United States Court of Appeals for the Fourth Circuit held that because it did not lend any money to the plaintiffs, the mortgage broker was not a “creditor” under the Act, and therefore the title search and title binder fees were not part of the “points and fees” used to compute whether a loan is a “high cost mortgage.” Because the loan was not a “high cost mortgage” without the inclusion of the title search and title binder fees as “points and fees” under the Act, the court affirmed the district court’s grant of summary judgment to the lender.

American Gen. Fin. Servs., Inc. v. Brown, 376 S.C. 580, 658 S.E.2d 99 (2008).
Opinion No. 26445, decided February 27, 2008.

A mortgagee brought a foreclosure action against the mortgagor and specifically demanded a deficiency judgment in the complaint. The master-in-equity ordered the sale of the property and acknowledged that the mortgagee had demanded a deficiency judgment. After the sale, the mortgagee requested a deficiency judgment for the difference between the sales price and the debt owed, but the master-in-equity denied the request, finding that he had discretion to do so if he found that a deficiency judgment would be inequitable. The South Carolina Supreme Court reversed, holding that the master-in-equity’s decision was in clear conflict with South Carolina case law stating that the Legislature intended for a deficiency judgment to be denied only when it has been expressly waived, and that absent grounds to set aside the decree of foreclosure, there is no discretion to cut off the right to a deficiency judgment after the sale where: (1) the complaint in the foreclosure action asks for personal judgment, (2) the amount of the debt is fixed in the foreclosure decree, and (3) the sale is insufficient to satisfy the entire debt.

Green Tree Servicing, LLC v. Williams, 377 S.C. 179, 659 S.E.2d 193 (Ct. App. 2008).
Opinion No. 4344, decided February 20, 2008.

The owner of a parcel of property deeded a portion of the property to her granddaughter but retained a possibility of reverter that would be triggered if the property was not used for residential purposes for a period of sixty consecutive days. The granddaughter subsequently obtained notes secured by mortgages on her interest in the property. Thereafter, she moved off the property and expressed a desire to return the property to her grandmother. The mortgage holder foreclosed on the mortgages and requested an order stating that the grandmother’s interest in the property was junior to the mortgages. The master-in-equity issued the order, but the South Carolina Court of Appeals reversed, holding that because the mortgage holder was on notice of the nature of the granddaughter’s estate (fee simple determinable) when it issued the mortgage and because the grandmother was never joined in the mortgages, the mortgages were subject to the determinable quality of the estate. Therefore, when the determinable fee was terminated, the mortgage holder’s interest in the property was also terminated and title reverted to the grandmother in fee simple, unencumbered by the mortgages.

Friends of McLeod, Inc. v. City of Charleston, 376 S.C. 610, 658 S.E.2d 544 (Ct. App. 2008).
Opinion No. 4338, decided January 17, 2008.

A college was granted a special zoning exception to operate within a district that would otherwise have prohibited such operations. The local zoning board granted the exception, and a group opposed to the exception appealed to the circuit court within the thirty day time period established by statute. However, the group did not name the college as a party to the appeal, and only moved to amend its pleading after the thirty day period had expired. The South Carolina Court of Appeals held that because development permittees are necessary parties to appeals of their respective permits, the group’s failure to file and serve the notice of appeal on the college within the required thirty day period required the dismissal of the appeal.

Lowcountry Open Land Trust v. Charleston Southern University, 376 S.C. 399, 656 S.E.2d 775 (Ct. App. 2008).
Opinion No. 4336, decided January 16, 2008.

A buyer and seller entered into a contract for the purchase and sale of a piece of property. The seller owned just over 60% of the subject property, and therefore the contract provided that if the owners of the other 40% could not be convinced to sell their share or if there were any other title deficiencies, the buyer could elect to cancel the contract or simply accept such title as the seller could convey as performance in full. Several months after the target closing date passed, the seller terminated the contract and the buyer filed this action for specific performance. The master-in-equity found that because the contract did not contain a “time is of the essence” clause and because the seller had waived its right to enforce the closing date, the buyer was entitled to specific performance, and therefore the master ordered the parties to renegotiate a contract extension. The South Carolina Court of Appeals affirmed the master’s order insofar as it required the seller to convey its interest in the property, but reversed the portion of the order requiring the parties to renegotiate a contract extension because courts have no authority to alter contracts or to make new contracts for the parties.

Bell v. Knight, 376 S.C. 380, 656 S.E.2d 393 (Ct. App. 2008).
Opinion No. 4331, decided January 10, 2008.

A father and mother owned property as tenants in common. When the father died, the mother and the couple’s three children agreed to vest title to the property solely in the mother, and the Probate Court issued an order divesting the children of any interest in the property. However, a deed to the mother was never issued. Subsequently, the mother failed to pay taxes on the property and the tax collector notified the mother of the delinquency and the impending tax sale. After the property was sold at a tax sale, a deed to the mother was finally issued pursuant to the Probate Court’s order, and the mother thereafter issued a quitclaim deed to a third party. The third party challenged the tax sale as invalid due to the tax collector’s failure to notify the children of the sale. The South Carolina Court of Appeals held that the Probate Court order was, by itself, sufficient to bind the children and extinguish their interest in the property. The fact that the deed to the mother was not issued until after the tax sale was irrelevant. Therefore, the tax sale was upheld because the tax collector properly notified the mother, who was the only person with an interest in the property.

Green Tree Servicing, LLC v. Adams, 375 S.C. 583, 654 S.E.2d 100 (Ct. App. 2007).
Opinion No. 4311, decided November 20, 2007.

A mortgagee foreclosed on a mortgage and purchased the subject property at a public auction. The mortgagee subsequently discovered that a judgment creditor had a lien against the property due to a judgment he obtained against the former mortgagor and filed this action to clear the title to the property. The South Carolina Court of Appeals held that the judgment creditor’s absence from the foreclosure action did not prejudice him because it did not extinguish the judgment but merely removed the lien from the subject property. The judgment creditor could still seek relief on his judgment from some other source.

Brazell v. Windsor, 376 S.C. 83, 655 S.E.2d 736 (Ct. App. 2007).
Opinion No. 4309, decided November 8, 2007.

The plaintiffs entered into a contract to sell a home to the defendant. After closing, the defendant notified the plaintiffs of a flaw in the reverse osmosis system on the property. The defendant’s closing attorney withheld $2,000.00 from the plaintiffs’ sale proceeds and proposed to place them in escrow to fund the repairs. The plaintiffs sought to rescind the sales contract, but the South Carolina Court of Appeals upheld the dismissal of the case because the alleged breach was relatively minor and therefore was not sufficient to justify the remedy of rescission, which requires a substantial and fundamental breach.

Penny Creek Associates, LLC v. Fenwick Tarragon Apartments, LLC, 375 S.C. 267, 651 S.E.2d 617 (Ct. App. 2007).
Opinion No. 4293, decided September 18, 2007.

In this case, the defendant purchased property from the plaintiff, a developer, for the purpose of constructing an apartment complex. The property was subject to a declaration of covenants and restrictions, which provided that the property could not be subdivided or the boundary lines changed without the permission of the plaintiff. A few years later, the defendant decided to convert the apartment complex into condominiums and the plaintiff subsequently filed this declaratory judgment action seeking an order preventing the defendant from making the conversion without the plaintiff’s permission. The South Carolina Court of Appeals held that the conversion of apartments into condominiums amounts only to the division of the ownership interest in the property and does not amount to subdivision of the underlying lot or modification of the boundary lines. Thus, the court allowed the defendant to proceed with the conversion without the plaintiff’s permission.

South Carolina Elec. & Gas Co. v. Hartough, 375 S.C. 541, 654 S.E.2d 87 (Ct. App. 2007).
Opinion No. 4292, decided September 18, 2007.

In this case, an electric company had an option to purchase a tract of land from the defendant. At the time the option contract was executed, the defendant had no interest in the property, but later acquired an “heir’s share” of the property. The defendant instituted a quiet title action to determine ownership, but the action stalled for various reasons. The electric company filed this declaratory judgment action seeking an order stating that the option remained valid. The defendant argued that the option was invalid under South Carolina law because it had no expiration date, but the South Carolina Court of Appeals held that the option remained valid so long as it was exercised within a reasonable time. The court found that after the quiet title action was resolved would be within a reasonable time.

Bostic v. American Home Mortg. Servicing, Inc., 375 S.C. 143, 650 S.E.2d 479 (Ct. App. 2007).
Opinion No. 4278, decided July 18, 2007.

A property owner paid off a mortgage on a piece of property but never received any payoff documents. Four months after the payoff, the property owner filed suit against his mortgage company alleging breach of contract and violation of S.C. Code Ann. § 29-3-310. Section 29-3-310 requires that a mortgagee, at the request of a mortgagor who has paid off his loan, must record satisfaction of the mortgage. The penalty for noncompliance is $25,000 or half of the original mortgage loan amount, whichever is less. The South Carolina Court of Appeals held that the term “request,” as used in the statute, does not require a written request, but merely one that informs the mortgagee of the mortgagor’s desire for the satisfied mortgage to be recorded. Because the property owner merely sent a payoff check but never actually requested satisfaction to be filed, the court held that he was not entitled to statutory damages.

Lever v. Lighting Galleries, Inc., 374 S.C. 30, 647 S.E.2d 214 (2007).
Opinion No. 26353, decided June 25, 2007.

The plaintiff sought a ruling that a mortgage he had executed in favor of the defendant should be extinguished. He argued that because the defendant had sought to collect on the note secured by the mortgage and its judgment had expired, the defendant had elected its remedy and the mortgage should be marked satisfied. The South Carolina Supreme Court held that until a mortgage debt is satisfied, any judgment on the debt secured by the mortgage has no effect on the mortgage lien and does not preclude foreclosure. Therefore, the court held that the defendant may maintain a foreclosure action against the plaintiff.

Estate of Patterson v. Palmetto Bank, 374 S.C. 116, 646 S.E.2d 885 (Ct. App. 2007).
Opinion No. 4249, decided May 31, 2007.

In this probate action, a landowner conveyed a parcel of land to the South Carolina Department of Transportation, but SCDOT recorded the deed in the wrong county. Subsequently, the landowner conveyed the same parcel to a third party. When the landowner died, the third party filed a claim against the landowner’s estate for breach of deed warranty. The estate argued that the third party could not litigate the breach of warranty claim because he could file a claim for superior title over SCDOT as a subsequent purchaser for value without notice, but the South Carolina Court of Appeals disagreed and allowed the third party to pursue his breach of warranty claim.

Arcadian Shores Single Family Homeowners Ass’n, Inc. v. Cromer, 373 S.C. 292, 644 S.E.2d 778 (Ct. App. 2007).
Opinion No. 4223, decided May 17, 2007.

A homeowner’s association sought to enjoin the defendant from parking a motor home where it would be visible from the street and ordering her to remove her fence. The South Carolina Court of Appeals upheld the denial of the injunction because the property use restrictions adopted by the original developer of the subdivision did not expressly prohibit the parking of a motor home in an area visible from the street. As to the fence, the court held that the association had waived its right to object to the fence because it inconsistently enforced the requirement that fence plans be submitted to the association for approval and pictures of property throughout the subdivision showed there was no scheme with respect to fencing in the subdivision.

Sheppard v. Justin Enterprises, 373 S.C. 518, 646 S.E.2d 177 (Ct. App. 2007).
Opinion No. 4245, decided May 14, 2007.

The plaintiffs held an express easement for ingress and egress across the defendant’s property. The defendant relocated the easement without the consent of the plaintiff, and the South Carolina Court of Appeals upheld an order requiring the defendant to restore the easement to its original location. The court stated that South Carolina follows the Restatement of Property rule allowing the relocation of easements only in cases involving easements by necessity, not express easements where the parties bargained over the particulars of the easement.

Eastern Savings Bank, FSB v. Sanders, 373 S.C. 349, 644 S.E.2d 802 (Ct. App. 2007).
Opinion No. 4234, decided April 16, 2007.

The owners of property defaulted on their mortgage payments and the bank sought foreclosure, specifically demanding the right to a deficiency judgment. At the foreclosure sale, the bank’s bidder made a mistake and the property was sold to a third party. The bank moved to set aside the sale, but the South Carolina Court of Appeals upheld the denial of the motion because the sale was conducted in a fair manner and the officer making the sale and the third party purchaser did not contribute to the bank’s mistake. Furthermore, the sale price of one-third of the property’s alleged value was not so inadequate as to shock the conscience of the court.

Bowers v. Thomas, 373 S.C. 240, 644 S.E.2d 751 (Ct. App. 2007).
Opinion No. 4221, decided March 19, 2007.

A landlord filed suit to evict a tenant who had failed to pay rent within a grace period for three consecutive months. The tenant claimed that the landlord failed to give proper notice of his intention to evict the tenant, but the South Carolina Court of Appeals found that a letter notifying the tenant that any subsequent non-payment of rent would result in eviction was sufficient notice to terminate the lease after the late payment of the following month’s rent.

Fici v. Koon, 372 S.C. 341, 642 S.E.2d 602 (2007).
Opinion No. 26283, decided March 12, 2007.

Buyers in a real estate transaction sought specific performance of a contract for the sale of a parcel of land. The contract stated that the property to be conveyed would be “at least thirty acres” and that the buyer and seller would later agree on property lines. The South Carolina Supreme Court held that the contract did not contain a description of the property sufficient to satisfy the Statute of Frauds, which requires that, in order to be enforceable by a court, contracts for the sale of land must be in writing, signed, and contain a description of the property to be conveyed.

Hardin v. SCDOT, 371 S.C. 598, 641 S.E.2d 437 (2007).
Opinion No. 26262, decided February 12, 2007.

This case involved two inverse condemnation actions brought by land owners alleging that the state’s realignment and closing of certain roadways constituted a “taking” by depriving them of their access to previously accessible public roadways. The South Carolina Supreme Court overruled prior precedent that focused on a landowner’s “special injuries” in favor of an analysis focusing on how any road reconfiguration affects a property owner’s easements (access to public roads adjoining his property). The court relied on the modern principle that road closings and realignments which do not actually “take” land or an easement from a property owner do not give rise to compensable takings because those actions do not directly interfere with an owner’s rights in the property as a whole.

 

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