CHAPTER 8
This chapter is designed to serve as a general reference of the duties and activities that may occur in the Register of Deeds (ROD) office. While the intent is to provide a useful tool of the basic procedures for active ROD’s, it is also understood that each county may have their own set of policies, practices, and ordinances that they adhere to, in addition to State statute. Please consult your county attorney, SC Court Administration, or the SC Code of Laws, for clarification on any item contained in this chapter.
The Register of Deeds exists as a separate governmental office in 23 counties in South Carolina. In the remaining 23 counties, the ROD functions are performed by the elected Clerk of Court.
Counties where ROD’s are appointed by the governing body are:
| Anderson | Sumter |
| Beaufort | Kershaw |
| Cherokee | Lancaster |
| Chestefield | Oconee |
| Clarendon | Orangeburg |
| Colleton | Pickens |
| Georgetown | Richland |
| Horry | Spartanburg |
| Jasper |
Counties where the ROD’s are elected are:
Aiken
Berkeley
Charleston
Dorchester
Greenville
Lexington
On January 1, 1998, the name of the office changed from Register of Mesne Conveyances (RMC) to Register of Deeds (ROD). Current office holders, whether appointed or elected, were authorized to keep the name of RMC during their tenure in office. However, after their term or exit from office, the name is to change to ROD. (See 1997 Act 34)
The duties of the ROD are provided for in Title 30, Chapter 5 of the S.C. Code of Laws. The proper recording of documents provides notice to subsequent purchasers or creditors of the interests of others in the property and establishes priority of claims against that property. Generally, all instruments conveying an interest in real property must be recorded in that county’s ROD in order to be valid. Other documents of public interest may also be recorded by the ROD.
The primary duty of the Register of Deeds is to record writings concerning title to or interests in real or personal property. Failure to do so, or to adequately secure the records in his or her charge as a public officer, can subject the ROD to criminal sanctions. (S.C. Code §§ 8-1-50 and 8-1-60)
The following recording duties are prescribed by law:
- Recording marriage settlements, conveyances, mortgages and other writings concerning the titles to lands in his/her county. (S.C. Code § 30-5-90)
- Recording mortgages of leaseholds or other interests in real estate. (S.C. Code § 30-5-130)
- Recording proceedings under the Bankruptcy Act of the United States. (S.C. Code § 30-5-190)
- Recording plats of real estate. (S.C. Code § 30-5-230)
- Recording assignments or transfers of mortgage. (S.C. Code § 30-7-30)
- Recording releases or satisfactions of lien on real estate. (S.C. Code § 30-7-30)
- Recording charters of carriers (S.C. Code § 58-15-100)
- Recording highway and street closings or abandonment by court order. (S.C. Code § 57-9-30)
- Recording conveyances of real property involving the State of South Carolina, only if accompanied by a certificate of acceptance. (S.C. Code § 1-11-65)
- Recording S.C. Department of Revenue warrants (S.C. Code § 12-54-120)
- Recording and indexing state tax liens. (S.C. Code § 30-5-15)
- Providing certified copies of any writing recorded in the office upon application and payment in advance of any required fees. (S.C. Code § 30-5-20)
The Register of Deeds is also responsible for:
- Recording and indexing federal tax liens.
- Recording mechanics liens.
- Recording unpaid assessments.
- Recording veterans DD214 forms.
- Recording powers of attorney and certificate of trusts.
- Recording UCC financing statements regarding real estate.
As stated earlier, each county may have their own additional practices that they follow. Any recording duty omitted from the above lists is not intentional.
8.2 Recording Fees and Recording Requirements
Generally, all documents presented for recording require:
- An original, “wet” signed document
- Signature of the Party of the First Part. i.e. Grantor/Seller, Mortgagor/Borrower, etc.
- Two witnesses to the signature
- A South Carolina Probate or Acknowledgement.
- A property description to include a recorded plat reference or metes and bounds description
- A derivation clause to include name(s), date and book and page of conveyance to the Grantor
- Subsequent documents such as releases, satisfactions, etc. require a “parent” or original book and page number.
Exceptions/additional requirements are noted. All listed should be relatively consistent in all counties.
However, some interpretations may vary slightly.
Recording requirements are pursuant to Title 30 of the SC Code of Laws. Recording fees are pursuant to S.C. Code § 8-21-310.
Recording Fees
Recording requirements are pursuant to Title 30 of the SC Code of Laws. Recording fees are pursuant to S.C. Code § 8-21-310 which was amended by the South Carolina Legislature, effective August 1, 2019.
To access a complete list of the Recording Fees, please click on the following link: South Carolina Recording Fees List.
The procedures used to record documents in the office of the Register of Deeds are designed to provide adequate and immediate notice of interests in real or personal property to subsequent purchasers or creditors. The specific requirements are contained in the statutes, but in general consist of the following steps:
- Verification that the pre-requisites to recording have been met.
NOTE: The recording pre-requisites are fairly simple: in order to be recorded, an instrument must be signed by the grantor, mortgagor, vendor, lessor or maker in the presence of two witnesses and taken before a notary. (See Section 8.3 for exceptions/additional requirements.) Beyond this, the degree of verification varies from county to county. Ultimately, it is up to the courts to determine the validity of any document. - Collection of appropriate recording and documentary fees and notation on the instrument that the fees were paid.
- Entry on document of the date, hour and minute document was presented for filing.
- Assignment of a book and page location of the instrument. Note: After filing, the ROD must allow its land records to be inspected by the public. The documents are to bear a "book and page number" which indicate the recording location. Since instruments inspected by the public may be photocopies, microfilm, or digital images, the "book and page number" refers to the document location in either a book, a roll of microfilm, and/or a computer data base. Indices of the instruments are to be created to ease public inspection and they may be computer generated.
- Entry of recording upon proper indexes.
- Endorsement of a certificate on the instrument showing the date, book and page where recorded.
- Processing of the document into a permanent record, by photocopy, microfilm or digital imaging, and place conspicuously for public inspection. An original roll of security film must be created and deposited with the S.C. Department of Archives and History (SCDAH) for all records. For more details, contact the Microfilm Lab at the SCDAH at 803-896-6209.
- Return of original instrument to recording party.
Once the original instrument has been recorded, subsequent recordings such as satisfactions, assignments, cancellations and releases must be noted in the proper indexes and books so that notice of the current status of title in that property is evident. Willful violation of this requirement may result in fine or imprisonment sanctions.
Tasks:
- Enter the word "canceled", together with the signature of the officer, in the margin or across the names of the mortgagor and mortgagee in the indexes of real estate mortgages or chattel mortgages when the mortgage is canceled of record
or
- Maintain a separate index in which all cancellations and other releases are recorded.
The Register of Deeds is required to maintain certain records in the office. For each type of record, one or more indexes must also be maintained to facilitate locating recorded documents. Specific statutory requirements for records include the following:
- Record of papers filed including names of grantor and grantee, mortgagor and mortgagee, obligor and obligee, date of filing and nature of the instrument. (S.C. Code § 30-9-30) Record sets generally fall into eight categories:
Grantor/Grantee – includes Deeds, Power of Attorney, Agreements
Mortgagor/Mortgagee – includes Mortgages
Mortgage Satisfaction/Release – includes all subsequent documents to an original mortgage
Plat – includes all surveys of property
Mechanic's Liens – includes Mechanic’s Liens as well as subsequent recordings to original
Tax Liens – includes all tax liens, State, Federal, Employment Commission liens as well as subsequent documents to the original such as Satisfactions, etc.
Miscellaneous Liens/Unpaid Assessments – includes Homeowner Association liens and other miscellaneous liens as well as subsequent documents to the original
UCCs – includes Uniform Commercial Code filings as well as all subsequent filings to the original such as UCC 3 and UCC Termination filings
- Separate indexes for different sets of records provided in the office. (S.C. Code § 30-9-20)
Although there are no statutes that speak to proper indexing of names for the Register of Deeds offices, each office should establish “rules” for indexing in order to maintain consistency both for employees of the office and for regular users. These should be posted in a conspicuous manner in the Register’s office. Following are suggested rules that can be conformed to meet the needs of each office and are based on Property Records Industry Association standards.
INDEXING RULES
The following indexing standards are effective as of _______ and are hereby adopted for the County of _________________, Register of Deeds office where proper indexing is vital for location of documents.
SEARCHERS ARE ALWAYS ADVISED TO SEARCH ALL POSSIBLE VARIATIONS AND TO RELY UPON ACTUAL DOCUMENTS. ANY INDEXING PRIOR TO THE ABOVE DATE MAY NOT APPLY.
Global Rules:
- Never change a name on a document.
- All signed names of parties on a document will be indexed. In the cases where signatures are not required or do not appear for various reasons (e.g. name of mortgagee), all human and organization names on the document will be indexed. In the case of a person unable to sign their full name and he or she makes an “X” or some other type of mark, the name typed under the mark will be indexed.
- Punctuation is never used with exceptions as noted.
- When indexing a Trustee, both the human and trust, church or organization name will be indexed. For example: Mary Smith, Trustee for the Smith Family Trust is indexed under SMITH MARY TRUSTEE (human name) and SMITH FAMILY TRUST (organization name). In the example: Mary Smith, Trustee for Trust B, Trust B will not be indexed.
Human Name Rules:
- Compound names contain no hyphens. Hyphens are replaced with spaces so that Mary Sue Rogers-Johnson is indexed: first: MARY middle: SUE surname: ROGERS JOHNSON and will not be indexed under JOHNSON. In the case of Mary Sue Rogers Johnson (no hyphen) both Sue and Rogers will be indexed as middle names and Johnson will be indexed as the last name.
- All foreign names are assumed to have a given name (or names) and a surname. Thus, Ah Ho Chen is indexed, first: AH middle: HO surname: CHEN. Also, Hamid Al-Sarras is indexed: first: HAMID, surname: AL SARRAS. No foreign symbols or accent marks are used.
- The full name of the party is indexed as it appears on the document. No abbreviation will be used unless the names are abbreviated on the document.
- When the signature is legible, the signature governs the indexing. When the signature is not legible, the printed or typed name under the signature governs the indexing. In a case where the typed name below the signature conflicts with the signature, index both ways.
- Surnames that begin with “Mc” such as McDonald and Mc Coy will be entered without spaces regardless of how the name appears on the document.
- One initial is considered a given name. Two initials are considered as two given names. Thus, M. L. Jones is entered: first: M middle: L surname: JONES.
- All titles such as Dr. or Rev. will be dropped.
- Suffixes such as Jr. or Sr. will be entered after the given name(s) or in the suffix field for computer systems that allow this type of search option.
Organization Name Rules:
- Never convert a roman numeral to a number. Never spell out a number or numeral. And never convert a number that is spelled out. These will be entered as presented on the document.
- The, An and A are never indexed. These are dropped.
- Human names in an organization entry are not reversed. Thus, Carl Magnum, Inc. is entered: CARL MAGNUM INC. (Search under C) Steve Hendrix Builders is entered: STEVE HENDRIX BUILDERS (Search under S)
- Fractions in an organization name are separated by a slash (/). Thus, 7 5/8 Company is entered: 7 5/8 COMPANY.
- Organization names containing the words Mount, Mt., Saint or St. are entered as they appear on the document and are never converted to either the full or abbreviated form.
8.5 General Records Retention Schedules for County Records
Purpose
The schedules are designed to:
• give county governments uniform guidelines for the retention and disposition of common records;
• make sure counties retain for as long as necessary the records they will need for administrative,
legal, fiscal, and other uses;
• make sure counties retain records for as long as state and federal laws, regulations, policies,
and procedures require;
• promote the cost-effective management of records;
• give counties the legal authorization they need to dispose regularly of their obsolete records.
Definitions of schedules
A records retention schedule describes one or several records series, shows the length of time the records should be retained, and indicates their final disposition. Schedules are of two types — specific and general.
Specific Records Retention Schedules — these schedules are prepared and approved specifically for
your county; your county’s name will appear on these.
General Records Retention Schedules — these schedules are state regulations issued by the S.C. Department of Archives and History and are published in the Code of Laws of South Carolina 1976, as amended. When a general schedule applies to records already covered under a specific schedule, the general schedule will supersede the specific schedule unless you wish to opt out of using the general schedule.
Explanation of micrographics terms used in retention schedules
“Microfilm Optional” — Microfilm may be substituted for the original records IF the microfilm meets state standards (see S.C. Code of Regulations §R-12-200). Before you destroy the originals, you must submit to the State Archives and have approved a Microfilm Quality Certification for Records Disposition form.
“Permanent. Microfilm for security” — You cannot destroy the original records after microfilming.
General Retention Schedule for County Records
S.C. Code of Regulations § R-12-500. Introduction and general matters; application of schedule.
The following general schedules contain minimum records retention periods for the official copy of
the records. These retentions and dispositions apply regardless of physical format, i.e., paper,
microfilm, electronic storage, digital imaging, etc. Convenience, informational or duplicate copies are
not governed by this regulation and may be destroyed when no longer needed for reference. To destroy
records in accordance with this regulation, county governments must complete and submit a report
of records destroyed form to the Department of Archives and History after eligible records have been
destroyed. These forms are available from the Department’s Division of Archives and Records
Management. Before disposing of public records under these general schedules, county governments
should insure that the records have no further audit, legal, or fiscal value. These general schedules
supersede all schedules approved previously for the same records series. However, county governments
may opt out of these general schedules and request the continuing use of existing schedules or
the establishment of specific retention schedules for their records when appropriate, necessary, or in
order to avoid conflict with other laws or regulations.
Subarticle 1. Register of Deeds
S.C. Code of Regulations § R-12-501.1. Grantor and Grantee Index to Conveyances
A. Description: A finding aid to instruments in the conveyance book series. Information includes
name of grantee and grantor, book and page number where document is recorded, day and year of
execution, month, day and year of recordation, number of acres or lots and a description of the land.
B. Retention: Permanent. Microfilm for security.
S.C. Code of Regulations § R-12-501.2. Conveyances (Deeds, Titles to Real Estate)
A. Description: Documents real property transactions plus infrequent entries involving personal
property. Information includes grantor, grantee, location and description of land, monetary consideration, encumbrances (if any), signature of grantor, notary, and witnesses (or facsimiles thereof), date recorded, and plats (where applicable).
B. Retention: Permanent. Microfilm for security.
S.C. Code of Regulations § R-12-501.3. Mortgagor and Mortgagee Index to Real Estate Mortgages
A. Description: A finding aid to instruments in the real estate mortgage book series. Information
includes name of mortgagee and mortgagor, book and page number where document is recorded, and
the date.
B. Retention: Permanent. Microfilm optional.
S.C. Code of Regulations § R-12-501.4. Real Estate Mortgages and Satisfactions
A. Description: Records the transfer of property, serving as a security for a debt which becomes void
when the debt is paid according to the terms of the mortgage. Information includes name of mortgagor
and mortgagee, description of the property, date of instrument, date of recording and satisfaction of
mortgage (where applicable).
B. Retention: Permanent. Microfilm optional.
S.C. Code of Regulations § R-12-501.5. Index to Plats
A. Description: A finding aid to plats. Information includes name of owner and surveyor, date filed,
date surveyed, volume and page number, property location, description, map number.
B. Retention: Permanent. Microfilm for security.
General Records Retention Schedules for County Records
S.C. Code of Regulations § R-12-501.6. Plats
A. Description: Documents the legal survey and mapping of lands for grants and conveyances.
Information includes location, boundaries and divisions, date of survey, certificate of surveyor, scale,
property owners, date of recording, and plat.
B. Retention: Permanent. Microfilm for security.
S.C. Code of Regulations § R-12-501.7. Index to Miscellaneous Records
A. Description: A finding aid to instruments in the miscellaneous record series. Information
includes name of party, book and page number.
B. Retention: Permanent. Microfilm optional.
S.C. Code of Regulations § R-12-501.8. Miscellaneous Records
A. Description: Various instruments filed with the office, including charters, contracts, options,
agreements, powers of attorney, covenants, articles of association, articles of mergers between
corporations, notices of forthcoming mergers, assignments of contract to mortgages, limited partnership
agreements, and notices of intent to petition.
B. Retention: Permanent. Microfilm optional.
S.C. Code of Regulations § R-12-501.9. Index to Uniform Commercial Code Financing Statements.
A. Description: A finding aid for liens on personal property under the Uniform Commercial Code
adopted for South Carolina as of January 1968. Information includes name of debtor, date of personal
debt, date of maturity, character of debt, and description of personal property pledged.
B. Retention: 1 year after all entries have been terminated or lapsed, then destroy.
S.C. Code of Regulations § R-12-501.10. Uniform Commercial Code Financing Statements
A. Description: Original papers recording liens on personal property under the Uniform Commercial
Code adopted for South Carolina as of January 1968. These replace chattel mortgages. Information
includes file number, debtor’s name and address, secured party, filing date, time, number, and
officer, types of property covered, signature of party and signature of clerk.
B. Retention:
(1) Financing statements where transmitting utility is the debtor: 1 year after termination statement
has been filed, then destroy. If a microfilm or other photographic record of the financing statement
and any related statements (continuation, assignment, release) exist, originals may be destroyed
immediately after receipt of termination statement. Microfilm or other photographic records may
then be destroyed one year after termination statement has been filed.
(2) Other financing statements: 1 year after statement has lapsed or termination statement has been
filed, then destroy. If a microfilm or other photographic record of the financing statement and any
related statements (continuation, assignment, release) exist, originals may be destroyed immediately
after statement has lapsed or after receipt of termination statement. Microfilm or other
photographic records may then be destroyed one year after statement has lapsed or termination
statement has been filed.
S.C. Code of Regulations § R-12-501.11. Charters
A. Description: Consists of information on charters which have been recorded in the office of the
Secretary of State. Information includes name of organization, incorporators, date, place of activities,
capital, stock, increases in capital stock and cancellations.
B. Retention: Permanent. Microfilm optional.
General Records Retention Schedules for County Records
S.C. Code of Regulations § R-12-501.12. Chattel Mortgages and Indexes
A. Description: Defunct series containing original papers recording liens on personal property by
chattel mortgages. Information includes debtor’s name and address, secured party, filing date, time,
number, officer, types of property covered, signature of party, signature of notary. These have been
replaced by Uniform Commercial Code Financing Statements.
B. Retention:
(1) Records concerning chattel mortgages for rural electric cooperatives and Public Service
Commission regulated utilities: Until termination statement is filed, then destroy.
(2) Other records: Destroy.
S.C. Code of Regulations § R-12-501.13. Index to Federal Tax Liens
A. Description: Finding aid to federal tax liens. Information includes name of taxpayer, address of
taxpayer, date of filing, hour of filing, and amount of tax with interest.
B. Retention: Permanent. Microfilm optional.
S.C. Code of Regulations § R-12-501.14. Federal Tax Liens
A. Description: Standard forms filed in the office against personal property as a means of collecting
delinquent federal taxes. Information includes period ending, type and amount of taxes owed, amount
of penalty, amount of interest, total taxes, name/address of taxpayer, warrant number, date of notice
and demand, date signed, and signature of tax official.
B. Retention: 10 years and 30 days after date of assessment or last extension, whichever is longer,
then destroy.
S.C. Code of Regulations § R-12-501.15. Index to State Tax Liens
A. Description: Finding aid to state tax liens. Information includes name of taxpayer, address of
taxpayer, date of filing, hour of filing, and amount of tax with interest.
B. Retention: 10 years, then destroy.
S.C. Code of Regulations § R-12-501.16. State Tax Liens
A. Description: Standard forms filed in the office against personal property as a means of collecting
delinquent state taxes. Information includes period ended, type and amount of taxes owed, amount
of penalty, interest, total tax, name/address of taxpayer, warrant number, date of notice and demand,
date assigned, and signature of tax official.
B. Retention: 10 years, then destroy.
S.C. Code of Regulations § R-12-501.17. Index to Mechanics Liens
A. Description: Serves as the principal finding aid for locating mechanics liens. Information
includes name of plaintiff, name of defendant, and file number.
B. Retention: 10 years after final entry has been executed, discharged, released, or dissolved, then
destroy.
S.C. Code of Regulations § R-12-501.18. Mechanics Liens
A. Description: Records transcripts of mechanics’ and contractor’s claims filed as statutory liens on
property to secure payment of debt for materials or labor used thereon. Information includes name
of defendant, name of plaintiff, description of lien, recording date and time, book numbers and page
number.
B. Retention: 10 years after final judgment to execute the lien, discharge, release or dissolution has
been entered upon the registry, then destroy.
8.6 SC Department of Revenue (“SCDOR”) Deed Recording Fees
Overview and Summary
S.C. Code § 12-24-10 imposes a “deed recording fee” formerly known as documentary tax, on the recording of a deed in which any lands and all improvements on the land, tenements, or other realty is transferred to another person. The deed recording fee is one dollar and eighty-five cents for each five hundred dollars, or fractional part of five hundred dollars, of the realty’s “value” as determined by S.C. Code § 2-24-30. (State portion $1.10 – County portion - $0.55) The general exception is an instrument or a deed conveying property to a distributee of a decedent’s estate pursuant to S.C. Code § 62-3-907.
The Deed Recording Fee is to be collected by the Register of Deeds (“ROD”) in each county or by the Clerk of Court (“COC”) for counties in which there is no separate ROD. The amount collected must be noted on the instrument prior to photocopying, microfilming, or scanning. Three percent of the State’s portion is allowed as compensation to the collection-county if fees and return are remitted to the “SCDOR” by the 20th of each month. State fees are to be remitted to the State. County fees are to be deposited into the general fund of the County. State payment is to be remitted to:
SC Department of Revenue
Miscellaneous Tax Section
Columbia, SC 29214-0139
Or, by using an electronic funds transfer method.
Please be advised that Deed Recording Fee Return (form L-2125) is due to the SCDOR by the 20th of each month even if an electronic funds transfer is made.
All records of collection must be maintained in-office for a period of five years.
Recording instruments without meeting the prescribed requirements may carry penalties pursuant to S.C. Code § 12-24-120.
Overview of specifics regarding calculation and exemptions of the “Deed Recording Fee”
“Value” is defined for the purpose of deed recording fee calculation, as the consideration paid or to be paid in money or in money’s worth for realty including other realty, personal property, stocks, bonds, partnership interest, and other tangible property, the forgiveness or cancellation of a debt, assumption of a debt, and surrendering of a right. The fair market value of the consideration must be used in calculating the consideration paid in money’s worth. The fair market value of the realty may be used to determine the fair market value of the consideration.
A deduction from value is allowed for any encumbrance that remains on the property after the transfer.
The fair market value determined for County tax purposes may be used to determine fair market value for deed recording fee purposes.
Below is a list of exemptions to the deed recording fee provided for by the SCDOR. For more detailed information or further explanation, please refer to the South Carolina Department of Revenue Deed Recording Fee Manual (2007 Edition) at www.sctax.org or by calling the SCDOR Deed Recording Fee representative at (803) 896-1970.
S.C. Code § 12-24-40 provides several exemptions from the fee and reads:
Exempted from the fee imposed by this chapter are deeds:
(1) transferring realty in which the value of the realty, as defined in S.C. Code § 12-24-30, is equal to or less than one hundred dollars;
(2) transferring realty to the federal government or to a state, its agencies and departments, and its political subdivisions, including school districts;
(3) that are otherwise exempted under the laws and Constitution of this State or of the United States;
(4) transferring realty in which no gain or loss is recognized by reason of Section 1041 of the Internal Revenue Code as defined in S.C. Code § 12-6-40(A)2;
(5) transferring realty in order to partition realty as long as no consideration is paid for the transfer other than the interests in the realty that are being exchanged in order to partition the realty;
(6) transferring an individual grave space at a cemetery owned by a cemetery company licensed under Chapter 55 of Title 39 of the S.C. Code of Laws;
(7) that constitute a contract for the sale of timber to be cut;
(8) transferring realty to a corporation, a partnership, or a trust as a stockholder, partner, or trust beneficiary of the entity or so as to become a stockholder, partner, or trust beneficiary of the entity as long as no consideration is paid for the transfer other than stock in the corporation, interest in the partnership, beneficiary interest in the trust, or the increase in value in such stock or interest held by the grantor. However, except for transfers from one family trust to another family trust without consideration, the transfer of realty from a corporation, a partnership, or a trust to a stockholder, partner, or trust beneficiary of the entity is subject to the fee, even if the realty is transferred to another corporation, a partnership or trust;
(9) transferring realty from a family partnership to a partner or from a family trust to a beneficiary, as long as no consideration is paid for the transfer other than a reduction in the grantee’s interest in the partnership or trust. A “family partnership” is a partnership whose partners are all members of the same family. A “family trust” is a trust, in which the beneficiaries are all members of the same family. “Family” means the grantor, the grantor’s spouse, parents, grandparents, sisters, brothers, children, stepchildren, grandchildren, and the spouses and lineal descendants of any of them, and the grantor’s and grantor’s spouse’s heir under a statute of descent and distribution. A “family partnership” or “family trust” also includes charitable entities, other family partnerships and family trusts of the grantor, and charitable remainder and charitable lead trusts, if all the beneficiaries are charitable entities or members of the grantor’s family. A “charitable entity” means an entity which may receive deductible contributions under Section 170 of the Internal Revenue Code as defined in S.C. Code § 12-6-40(A);
(10) transferring realty in a statutory merger or consolidation from a constituent corporation to the continuing or new corporation;
(11) transferring realty in a merger or consolidation from a constituent partnership to the continuing or new partnership; and,
(12) that constitute a corrective deed or a quitclaim deed used to confirm title already vested in the grantee, provided that no consideration of any kind is paid or is to be paid under the corrective or quitclaim deed.
(13) transferring realty subject to a mortgage to the mortgagee whether by a deed in lieu of foreclosure executed by the mortgagor or deed executed pursuant to foreclosure proceedings.
(14) transferring realty from an agent to the agent’s principal in which the realty was purchased with funds of the principal, provided that a notarized document is also filed with the deed that establishes the fact that the agent and principal relationship existed at the time of the original purchase as well as for the purpose of purchasing the realty.
(15) transferring title to facilities for transmitting electricity that is transferred, sold, or exchanged by electrical utilities, municipalities, electric cooperatives, or political subdivisions to a limited liability company which is subject to regulation under the Federal Power Act (16 U.S.C. Section 791(a)) and which is formed to operate or to take functional control of electric transmission assets as defined in the Federal Power Act;
Based on the above, the deed recording fee is imposed for the privilege of recording a deed based on the transaction of transferring realty from one person to another person.
When the consideration paid for realty is money, the deed recording fee is based on the money paid. When the consideration paid for realty is “money’s worth” (e.g. other realty, stocks, forgiveness of debt), then the taxpayer must base the deed recording fee upon one of the following:
(a) the fair market value of the consideration paid,
(b) the fair market value of the realty being transferred, or
(c) the fair market value for property tax purposes of the realty being transferred.
When the realty is being “transferred between a corporation, a partnership, or other entity and its stockholder, partner, or owner, or the realty is being “transferred to a trust or as a distribution to a trust beneficiary,” then the taxpayer must base the deed recording fee upon one of the following:
(a) the fair market value of the realty being transferred, or
(b) the fair market value for property tax purposes of the realty being transferred.
It should also be noted that a “deduction from value is allowed for the amount of any lien or encumbrance existing on the land, tenement, or realty before the transfer and remaining on the land, tenement, or realty after the transfer.” As such, when the fair market value of the realty being transferred is used to calculate the fee, the value of the lien or encumbrance qualifying for this deduction may be deducted from the realty’s fair market value before calculating the deed recording fee due.
Affidavit of Value:
Pursuant to S.C. Code § 12-24-70, “the clerk of court or register of deeds shall require an affidavit showing the value of the realty to be filed with a deed.”
An affidavit to be filed with a deed and that affidavit must show the value of the realty. For deeds exempt under the law, the value will not be required to be stated on the affidavit. Such affidavits must state the reason why the deed is exempt from the fee. The affidavit required by this section must be signed by a responsible person connected with the transaction and the affidavit must state that connection. Secretaries, paralegals, runners, other administrative personnel do not qualify as a “responsible person connected with the transaction” and, therefore, may not sign the affidavit.
The clerk of court or register of deeds shall file these affidavits in his office.
The clerk of court or register of deeds may, at his discretion, waive the affidavit requirement. In addition, an affidavit is not required for an instrument or deed of distribution assigning, transferring, or releasing real property to the distributee of an estate pursuant to S.C. Code § 62-3-907 as evidence of the distributee's title.”
A person required to furnish the affidavit who willfully furnishes a false or fraudulent affidavit is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned not more than one year, or both.
Refund Procedures:
The following outlines the procedure for seeking a refund when a taxpayer believes he has overpaid the deed recording fee with respect to a particular deed.
The new deed recording fee requires that each deed have a notation placed upon it by the Clerk of Court or the Register of Deeds (“ROD”). This notation must include the date the deed was filed, the fee collected, and any other information the county may require. The notation must state “Exempt” if the transaction falls within one of the exemptions provided under S.C. Code § 12-24-40.
If a taxpayer seeks a refund of any fee paid, the following procedure must be followed:
- The original deed and the original affidavit (if the requirement for the affidavit has not been waived by the clerk or register) must be presented to the Clerk of Court or ROD. The Clerk or ROD will verify that the notation on the deed is the notation placed on the deed by the Clerk or ROD. The Clerk or ROD will then sign a letter or form verifying that the notation is authentic and present this to the taxpayer.
- The taxpayer should then forward the original deed, the original affidavit and the notation verification letter or form to the Department of Revenue. The taxpayer should also include a cover letter requesting the refund and containing all information required by S.C. Code § 12-60-470. All refund requests for deed recording fees should be mailed to:
SC Department of Revenue
Miscellaneous Taxes
P.O. Box 125
Columbia, South Carolina 29214
All refund requests received without the notation verification letter or form will be sent back to the taxpayer with a letter stating that the notation must first be verified by the Clerk or ROD and that the refund request must contain the verification letter or form. Refunds will also not be issued unless the Department receives the original deed and the original affidavit (unless the requirement for the affidavit has been previously waived by the Clerk or ROD).
3. If a refund is due, the Department will refund the State portion to the taxpayer and issue an order to the Clerk or ROD to refund the taxpayer the county portion of the fee. The Clerk or ROD should not issue a refund for the county portion of the fee unless they have received a refund order from the Department of Revenue. The Department, prior to returning the original deed and other documentation to the taxpayer, will note on the deed the date of the refund and the amount of the refund issued/ordered.
4. If the Department determines a refund is not due, the Department will advise the taxpayer. The taxpayer may appeal this denial of the refund under the provisions of S.C. Code §§ 12-60-470 and 12-24-150.
It is recommended that copies of this refund procedure be made available to taxpayers seeking a refund and/or posted at the office of the ROD or Clerk of Court.
Fraudulent or Sham Legal Documents
On October 18, 2016, Court Administration sent a memorandum to the Clerks of Court, Registers of Deeds and judges regarding fraudulent or sham legal documents that are filed with their offices. The memorandum included information from SLED that may be used as a reference tool in the handling of sham or fraudulent documents that are presented for filing or court action. You may access this memorandum at the following link: October 18, 2016 Memorandum.
Please see the below guidelines concerning the acceptance of filing of fraudulent documents:
1. Documents that are determined to be illegitimate court documents should not be accepted for filing. S.C. Code § 30-9-30(B)(1) provides statutory guidance for handling such documents. If the document bears the elements indicating a fraudulent filing (for example, alleging a fictional court such as a federal tribal circuit court or status derived from entities not recognized by the United States) and the clerk of court or the register of deeds reasonably believes that the document is materially false or fraudulent or is a sham legal process, the clerk of court or register of deeds may refuse to accept the document for filing.
2. If a clerk of court or register of deeds refuses to accept an illegitimate document for filing, S.C. Code §30-9-30(B)(1) requires that the clerk of court or register of deeds provide the person attempting to file the document with written notice that the filing has been refused pursuant to this section of the S.C. Code. Within 30 days of written notice of such refusal, the person presenting the document may commence a suit in a state court of competent jurisdiction requiring the clerk of court or the register of deeds to accept the document for filing.
3. Section 30-9-30(B)(2) provides that a document previously accepted and filed but subsequently determined to be a fraudulent document may be removed from the public record after giving 30 days written notice to the person on whose behalf the document was filed. Within 30 days of written notice of the proposed removal, the person provided the notice may commence a suit in a state court of competent jurisdiction preventing the clerk of court or register of deeds from removing the document.
4. If a clerk of court or register of deeds is not clear as to whether the document is fraudulent, it should be accepted for filing and subject to review by the court.
Persons knowingly presenting documents in connection with a sham legal process may be subject to criminal prosecution, not only under the Federal Mail Fraud Statute, but also under S.C. Sham Legal Documents Statute (Section 16-17-735), and such action may amount to obstruction of justice if they purport to prevent a South Carolina court from exercising its jurisdiction.
S. C. Code Ann. § 30-9-30 is provided below for your reference.
(A) Except as otherwise provided by statute, each clerk of court and register of deeds in this State shall keep a record, in the office in which he files all conveyances, mortgages, judgments, liens, contracts, and papers relating to real and personal property required by statute to be kept by him, by entering in the record the names of the grantor and grantee, mortgagor and mortgagee, obligor and obligee, or other parties to the written instruments, date of filing, and nature of the instrument immediately upon its lodgment for record. The filing is notice to all persons, sufficient to put them upon inquiry of the purport of the filed instrument and the property affected by the instrument. A return address must be provided on each conveyance, mortgage, judgment, lien, contract, or other document submitted for filing with the clerk of court or register of deeds. A document may be refused for filing if it lacks a complete return address.
(B)(1) If a person presents a conveyance, mortgage, judgment, lien, contract, or other document to the clerk of court or the register of deeds for filing or recording, the clerk of court or the register of deeds may refuse to accept the document for filing if he reasonably believes that the document is materially false or fraudulent or is a sham legal process. Within thirty days of a written notice of such refusal, the person presenting the document may commence a suit in a state court of competent jurisdiction requiring the clerk of court or the register of deeds to accept the document for filing.
(2) If the clerk of court or the register of deeds reasonably believes that a conveyance, mortgage, judgment, lien, contract, or other document is materially false or fraudulent, or is a sham legal process, the clerk of court or the register of deeds may remove the document from the public records after giving thirty days' written notice to the person on whose behalf the document was filed at the return address provided in the document. Within thirty days written notice of the proposed removal, the person providing the notice may commence a suit in a state court of competent jurisdiction preventing the clerk of court or the register of deeds from removing the document.
(3) If a clerk of court or a register of deeds improperly refuses to accept for filing or recording or improperly removes from the public records a conveyance, mortgage, judgment, lien, contract, or other document pursuant to this section, the clerk of court or register of deeds is not liable for damages, personally or in his official capacity, for the improper refusal or removal.
(4) For purposes of this subsection:
(a) "Sham legal process" means a document that is not issued lawfully and that purports to be a judgment, lien, or order of a court or appropriate government entity, or otherwise purports to assert jurisdiction over or determine the legal or equitable status, rights, duties, powers, or privileges of a person or property.
(b) "Lawfully issued" means adopted, issued, or rendered in accordance with applicable statutes, rules, regulations, and ordinances of the United States, a state, or an agency or a political subdivision of a state.