By Holly Roberson, Guest Contributor
“The First thing we do, let’s kill all the lawyers” Dick the Butcher in ''Henry VI,'' Part II, act IV, Scene II; Shakespeare
While lawyers often get ribbed about being the red tape of bureaucracy, that’s not why the character in Henry VI wants to unburden people of them. Getting rid of the lawyers means getting rid of the protectors of the systems that support our safety, security and property. South Carolina is one of the few states that requires an attorney to be present at a closing. It’s a protection for consumers and for the legal oversight of the passing of property.
I didn’t begin a practice of real estate because I was scared I’d become a name on a lawyer "hit list," I morphed into it naturally. Though not a South Carolina lawyer (my licenses are in Virginia and North Carolina), I am a South Carolina real estate broker. I enjoy Charleston SC, with it's unmistakeable beauty and its revolutionary history. I’ve gotten to know the city where both the people and the houses have names. Now I get to introduce people to the houses to which they will add their name to the storied title and navigate them through one of the biggest legal transactions of their life.
Real estate transactions bring more than one legal issue into play. During the purchase or sale of property, one will definitely rely on agency law, contract law, and property law. It’s not infrequent to see a single transaction include corporate law, securities, bankruptcy, estate or tax issues. Going into a real estate deal, it’s important to recognize these areas of the law. Lawyers keep transactions orderly and give individuals peace of mind about a purchase. Realtors walk beside you through the whole process.
Here’s a very quick overview of some legal issues surrounding your biggest purchase:
Agency Law in Real Estate
When you engage a real estate agent, you are actually represented by the broker-in-charge of that firm. Individual agents and brokers who work at that firm are agents of the broker. What does that mean, exactly? It means you are a client or customer of the real estate firm itself. Until you sign an engagement with a real estate firm, you are considered a customer not a client. A customer actually represents himself while the firm (through its agents) actually represents the other party. A client of the firm, on the other hand, can expect a litany of services: confidentiality, accounting, loyalty, and reasonable care and skill, to name a few. Read more on The South Carolina Real Estate Commission’s Agency Disclosure Brochure.
Contract Law in Real Estate
In simple terms, a contract is an agreement, upon sufficient consideration, to do or not to do a particular thing. That sounds easy enough until you start asking just a few lawyer questions: When did the agreement form? Who offered the first thing and who accepted the thing? What is consideration? What is sufficient consideration? What if the contract is valid but someone walks away? What if a supervening act keeps someone from fulfilling the contract? Does it survive death? What are the terms? If one term isn’t met, can I leave? We actually did ponder the question of what constitutes consideration for an entire first semester of Contracts. Thank you Professor Tucker, it stuck!
In a simple real estate purchase, a seller advertises his property for sale. A buyer makes an offer to purchase for a sum of money. At this point there is no contract. Once a seller accepts the offer of a purchase price and agrees to grant good title to the property at the closing, there is a contract. There are lots more issues, but one thing that is important to understand is that if you or the other party give a counter offer, it’s just that, an offer. It actually serves as a rejection of the first offer AND a new separate offer that must be accepted.
Real property is land. Investigating the title, determining how to convey it to another, and properly put the public on notice record are the sorts of things that make real estate lawyers happy. In South Carolina, with some of the oldest land grants in the US, you can imagine the colorful history of a plat. Even our name for the Register of Deeds reflects that: Charleston Register Mesne (pronounced “Meen”) Conveyance. A "Mesne" in English feudal law, was an intermediary lord who stood between the tenant and the chief lord. If you have an afternoon to kill, hang out at the deed vault and search your own property title. You will likely find an original land grant that was carved off into smaller plats. At any time, these plats (represented by deeds) could have been conveyed as a full warranty of good title, as a life estate with a reversion to the owner or a remainder to another, a quit claim or a joint tenancy. Trust me, it’s great to have a lawyer doing all this work on your behalf, they love opining on anything, even a title.
It takes a certain love of all of this - understanding the importance of the contract, being a good steward of the transactional process, and the desire to do things right and just that makes a good lawyer. So, what’s my new role in this whole process? I get to have fun. I get the absolute joy of navigating my clients through the process of buying and selling in a city where real estate has been bought and sold for centuries.
If we haven't met yet ... I invite you to get to know me better.
INTERESTED IN LEARNING MORE?
Our expert teams - from development, investment, real estate, and property management - have experienced it all and have the insight to help you along the way.