New SC tax law makes second homes more affordable!

  Governor Nicki Haley recently signed a new tax law which lowers the costs of owning a second home or commercial property in South Carolina.  The new law limits and in some cases eliminates rapid tax increases at the “point of sale” in South Carolina.  The new law applies to commercial property and non-owner occupied […]

If I stay in my foreclosed home can I gain title under adverse possession?

adverse possession south carolina

Lots of people want to know . . . if I stay in my home for a while after the foreclosure can I obtain title to it under South Carolina’s adverse possession law?   It all depends on how long a “while” you stay there and under what circumstances you occupy the home.

Let’s start the analysis with the premise that adverse possession of a foreclosure is not likely to happen.   The mere fact that the bank has proceeded to foreclosure means they are aware of their legal title to the property and are working to defend their interest.   Therefore, an adverse possession claim on a foreclosure is not likely to succeed in the modern age.

To constitute adverse possession a person must occupy the home or land for at least ten years.   The South Carolina Statute on adverse possession states as follows:

SECTION 15-67-210.Presumption of possession;  when occupation deemed under legal title.

In every action for the recovery of real property or the possession thereof the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time required by law.  The occupation of such premises by any other person shall be deemed to have been under and in subordination to the legal title unless it appear that such premises have been held and possessed adversely to such legal title for ten years before the commencement of such action.

Furthermore, possession of the property must be continuous, open, actual, notorious and exclusive during that time period.   What this means is you can’t hide in the back of a barn on the property for ten years and then claim adverse possession.  Your possession of the property must be obvious to your neighbors, the general public and to the actual title holder should he examine the property.   It also must be continuous.  You can’t stay for three years, take a five year vacation in the Caribbean and then come back for another seven years.  The ten years must run consecutively.

Therefore, gaining title of your home from a bank after a foreclosure just by occupying the home for a period of time will not likely work.   In some cases these days banks are taking quite some time to eject homeowners after foreclosure.  However, ten years is quite some time and not likely to occur.

At Coastal Living Real Estate we are constantly educating our members on the laws and regulations affecting real estate transactions.   As always, if you have a legal question, please consult a real estate attorney.  If you need to buy or sell real estate, please consult Coastal Living Real Estate!

 

South Carolina Supreme Court Issues Foreclosure Moratorium

south carolina foreclosure moratorium

South Carolina Supreme Court Chief Justice Jean H. Toal this week issued an Administrative Order halting all foreclosure proceedings in the entire State of South Carolina.  Court dockets and staff are overwhelmed with foreclosure filings from Spartanburg to Hilton Head.  Banks and mortgage servicers are filing foreclosures as fast as they can find lawyers to draft the paperwork.

However, after nearly five years of the foreclosure and housing crisis, the number one complaint from affected homeowners is the ineptitude of the banks in communicating with and attempting to resolve mortgage issues with homeowners.   Short sales are still taking five months minimum.  The loan modification application and decision process can take a year or more and even then a large percentage are ultimately denied.

Facing a growing chorus of homeowners indicating the banks are foreclosing before discussing both voluntary and legally mandated alternatives to foreclosure, Justice Toal stepped in and issued his administrative order.    While it doesn’t apply to all properties, just owner-occupied residences, it does require the foreclosing bank to certify it provided certain information and reviewed documentation provided by homeowners who wish to participate.    The notice and review required by banks is as follows:

(a)  that the Mortgagor has been served with a notice of the Mortgagor’s
right to foreclosure intervention for the purpose of seeking a resolution of the
foreclosure action by loan modification or other means of loss mitigation;

(b)  that the Mortgagee, or its designated agent, has received and examined
all documents and records required to be submitted by the Mortgagor to evaluate
eligibility for foreclosure intervention;

(c)  that the Mortgagor has been afforded a full and fair opportunity to
submit any other information or data pertaining to the Mortgagor’s loan or
personal circumstances for consideration by the Mortgagee;

(d)  that after completion of the foreclosure intervention process, the
Mortgagor does not qualify for loan modification or other means of loss
mitigation, in accordance with any standards, rules or guidelines applicable to
the mortgage loan, and the parties have been unable to reach any other agreement
concerning the foreclosure process; and,

(e)  that notice of the denial of loan modification or other means of loss
mitigation has been served on the Mortgagor by mailing such notice to all known
addresses of the Mortgagor; provided, that such notice shall also state that the
Mortgagor has 30 days from the date of mailing of notice of denial of relief to
file and serve an answer or other response to the Mortgagee’s summons and
complaint.

If within thirty days after having been served with notice of the homeowners rights, the homeowner has failed, refused, or voluntarily elected not to  participate in any foreclosure intervention process, the bank or lending institution, through its attorney, shall certify that fact to the Court, and the foreclosure action may proceed.

If you are underwater on your home and want to learn more about short sales and how they may help you, call us at Coastal Living Real Estate.  We will be happy to discuss your situation and let you know how we can help.

 

Recreational Use Law Protects SC Homeowners

If you are the current owner of an oceanfront home in South Carolina or thinking about buying a home that provides access to a recreational area such as the marsh or a fantastic quail hunting field, you may wonder what your responsibilities are to people who use that area.   What if someone were to slip and fall on the beach access boardwalk or if someone were to fall through the rotten railing on a bridge crossing a creek?   Do I need extra liability insurance for such a situation?   What are my responsibilities as a homeowner?

While each situation is different and must be evaluated on it’s own merits, South Carolina has attempted to limit the liability of homeowner’s who own property that can be used for recreation and to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting homeowner’s liability should someone get injured.  The South Carolina Recreational Use Statute (S.C. Code Section 27 et.seq) provides liability protection to homeowners opening their land to recreational use, as long as it is for public use and not a private commercial operation (i.e. the landowner charges a fee for entrance).   Recreational use is defined as things such as hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, summer and winter sports and viewing or enjoying historical, archaeological, scenic, or scientific sites, among others.

As a landowner you owe no special duty to keep the premises safe for entry or use by persons who have sought and obtained your permission to use your land for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on your land to such persons entering for the purposes encompassed in the permission.   While this limits your obligation to invitees on your property, it doesn’t completely absolve the landowner from ALL responsibility.  Landowners who may be considered grossly negligent or willfully or maliciously fail to guard or warn against a dangerous condition, use, structure, or activity may still be found liable for damages to an injured person.    What does that mean?   If, for instance, a landowner has an old well on his property that he knows has no cover on it and fails to warn someone it’s out there, he could be held liable if someone falls down the well while hunting.  Or, if you have a lake behind your house full of sunken posts that are six inches under the surface of the water and fail to warn persons water skiing of their whereabouts, you may be held liable.   Gross negligence implies more than just negligence.  Gross negligence is a willful and outright malicious failure to warn of or correct a known dangerous condition.

The South Carolina Recreational Use Statute encourages landowners to open their property to recreational use and enjoyment by the general public by limiting the potential liability of the landowner.  However, it is not an absolute abdication of responsibility on the part of the homeowner.   As an owner or a potential buyer of ocean front, marsh front or hunting real estate in South Carolina you can sleep a little more soundly at night knowing the law is on your side.  Nonetheless, you should always carry general liability insurance on your property, and cover up those abandoned wells!

Coastal Living Real Estate Launches New Website!

Coastal Living Hilton Head Real Estate

Coastal Living Hilton Head Real EstateCoastal Living Real Estate Group in Hilton Head Island, South Carolina announced today the launch of their new website.   Broker in Charge Simon Cooke is tremendously excited.  “We have been working on this project for quite some time and are tremendously enthusiastic about the launch.  This website incorporates new and efficient real estate technology that will make the user experience extremely friendly, as well as enabling Google, Bing, Yahoo and the other major search engines to index our site at light speed,” Cooke reported from corporate headquarters in Indigo Run Plantation.    The new site includes individual information on all the traditional  Hilton Head Island communities such as Sea Pines, Palmetto Dunes, Long Cove, Wexford, Indigo Run, Palmetto Hall and Hilton Head Plantation as well as the newer communities such as Fuller Pointe, the Paddocks, Shearwater Plantation and Crosswinds.

“We are also expanding our listings to encompass communities off-island in Bluffton, South Carolina, notably Moss Creek, Colleton River, Berkeley Hall, Belfair and Palmetto Bluff.  These communities offer some of the finest golf courses in the country, and we want to market that aspect to people all over the eastern seaboard of the United States,” said Cooke.   Marketing to golfers is not a new approach here in the Hilton Head area.  People from all over the country come here every year to enjoy some of the finest golf in the world.   However, being a three time All-American golfer at the University of Virginia and having recently been named one of the Top 50 Golfers in the History of the Atlantic Coast Conference gives Simon Cooke an edge.  “If you want to know more about a golf community in the Hilton Head area, you won’t find a better source of information about the courses and communities than Simon,” said his business partner Richard Kerr.   “You put that kind of inside information together with a powerful yet extremely user-friendly website  . . . . . . we think it’s gonna be a great experience for buyers and sellers of real estate in the Hilton Head and Bluffton area.”