Selling a House in South Carolina

Selling a house is one of the most significant legal transactions you'll ever participate in. It's important to know your legal rights and understand the process.

Working With a Real Estate Agent

In South Carolina, real estate agents agents may act as a seller's agent, a buyer's agent, or as a dual agent, and represent both the seller and the buyer in a real estate sales transaction. It is also possible to work with a real estate agent without entering into an agency agreement, in that case, the agent would work with you as a customer, and would not have a "fiduciary duty" to you, meaning that the agent would not legally represent you and would not owe you certain duties under the law. Rather, the agent would assist you with various tasks in completing a transaction.

Real estate agents must provide you with a disclosure form, either at your first substantive meeting, or possibly by e-mail, if your first substantial contact is over the phone. The form explains the options for agency relationships, and defines what the real estate agent's role is in your real estate sales transaction.

A real estate agent will owe you the duties stated in your brokerage or listing agreement or other contract, and will owe you the additional fiduciary duties of:

• Loyalty
• Obedience
• Disclosure
• Confidentiality
• Reasonable care
• Diligence
• Accounting

You are required to fill out and give the buyer a seller's disclosure form, which provides the buyer with information about known problems with the property. The form must be given to the buyer before a contract is signed.

You should disclose the following items:

• Defects, leaks or other problems with the foundation, windows, doors and siding
• Problems with roofs, electrical and plumbing work, heating and air conditioning units, septic systems and appliances
• Problems with termites or other insects
• Drainage problems
• Fixtures, such as pools, hot tubs, ceiling fans, satellite dishes and security alarms
• Structural changes or environmental hazards
• Noise or odor nuisances
• Fire damage
• Building code variances
• Deed restrictions
• Utility easements
• Foreclosures or other lawsuits affecting the property title
• Lead paint (required under the federal Residential Lead-Based Paint Hazard Reduction Act of 1992 for homes built prior to 1978)

Purchase Agreements

When you've got a serious buyer, you'll receive a written offer to purchase your home, sometimes called a "purchase agreement," which states the finalized terms and conditions for the sale.

You won't have very long to decide whether or not to take the offer or propose a counteroffer so it's important to be informed ahead of time.

Common counter-proposal items include:

• A higher purchase price
• A higher deposit
• Giving buyer less time to remove contingencies
• Excluding certain items from the sale
• Providing you move in time to vacate the house after the sale is closed
• A clause making it a contingency that your attorney approve the contract
• A "liquidated damages clause" that details how much money the buyer will owe you if the buyer backs out of the deal for reasons other than the contingencies listed in the contract

Legal Title Issues

Your South Carolina real estate lawyer or title company will investigate the legal title of the property you want to sell, and may find issues you'll need to understand.

In South Carolina, for example, an implied easement may be present where a person grants lands to which there is no accessible right-of-way except over her or his land or retains land that is inaccessible except over the land which the person conveys. In such instances a right-of-way is presumed to have been granted or reserved. Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable way of accessing the property, and it is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved.

Your property may also be subject to a "lien," which is a charge on the property to satisfy a debt or other obligation owed by the owner of the property. A lien encumbers property as long as it exists and has been recorded in the public records.

In South Carolina, liens on a piece of property may include:

• Mortgages
• Construction or mechanics' liens
• Judgment liens
• Tax liens

Closing Costs

In South Carolina, you can expect to pay for some or all of the following charges - called "closing costs"-at the time you sell your home:

• Broker's commission
• Survey
• Title insurance
• Recorded release of mortgage
• Transfer taxes
• Attorney's fee
• Home inspections

Specific Performance

In South Carolina, a seller who agrees to sell a particular property must do so unless the buyer fails to meet all the terms of the purchase agreement. This is called "specific performance," which is a legal action to compel performance of a contract. For this contract remedy, a court can order the parties to complete the contract. The buyer must then deliver the purchase price and the seller must then deliver the deed. If you have second thoughts on a particular sale, you'll want to immediately contact an attorney.