Why do I need an attorney for my closing?
South Carolina considers the conducting of a real estate closing the practice of law, which only an attorney can do. State v. Buyers Service Co., 357 S.E.2d 15 (S.C. 1986.) In South Carolina, any reputable mortgage lender will require that an attorney be selected to conduct the closing. Also, South Carolina real estate law is quite complex and you need an attorney to examine the title records for prior conveyances, liens, encumbrances, and errors in the deeds in the chain of title. Your attorney then negotiates with the title insurance company for insurance coverage insuring your title against adverse claims of ownership, liens, and easements.
Unlike other states, the closing attorney in South Carolina is a totally separate party from the title insurance company. The actual 45 minute closing, where the closing documents are signed, represents only about one-fifth to one-tenth of the services your attorney is providing you for your real estate transaction. The use of a closing agent rather than an attorney to close your loan is not only dangerous to you, but it is illegal, even if the transaction is "only" a refinance. In re Lester, 578 S.E.2d 7 (S.C. 2003.) Demand to use your own attorney.
Can I, as the buyer, select the attorney of my choice for my closing?
Yes, you can. If you are buying the property or refinancing your loan, you are paying the closing attorney. Don't let any involved party tell you that you must use a certain attorney for your closing -- remember, the closing is for YOU, not for someone else who won't be living in your house or paying your mortgage. Choose a lawyer who will represent YOU -- not one who is trying to make someone else happy.
When I recently refinanced my loan, the lender steered me towards an attorney I did not know, saying that this attorney was qualified to close the loan for me and approved with them. There's nothing I can do about it now, right?
Wrong. According to the South Carolina Consumer Protection Code, the borrower selects his or her closing attorney and the lender must abide by that preference, so long as that attorney is qualified.
What do I need to bring to closing?
You will need to bring some current (not expired) government-issued identification with your photo on it, such as a driver's license, passport, or military ID. If you are the buyer, the money you bring to closing needs to be in the form of "certified" funds, such as an official bank check, certified check, cashier's check, or money order (or wire transfer, or even cash), made payable to the trust account of the closing attorney.
Sellers often think they need to bring their original deed to closing, but this is not really necessary in South Carolina. The recorded copy of the deed in the County Register of Deeds office, which the attorney examines during the title search before closing, is more important than the actual original deed. Of course, you do need to bring your keys to the property. The above guidelines are only general; in your specific situation the closing attorney might modify or add to them.
I am married, but the house I am selling is in my name only. Does my spouse have to come to the closing?
No, your spouse will not need to sign the deed. While spouses have potential property rights in any real property their spouse owns, South Carolina abolished dower laws in the 1980s. Absent a Court Order establishing a spouses interest in real property, the owner of record on your deed is the only signatory necessary.
I am married, but the house I am buying will be in my name only, and my spouse will not be a co-borrower on the mortgage. Does my spouse have to come to the closing?
No. This situation is really the same as the one in the question just above. Your spouse does not need to participate in the buying of the house, and he or she need not sign the mortgage. When you get a mortgage loan, you convey to your lender a property interest in your house, and your spouse's potential property rights would be subject to the mortgage.
I have given my spouse a Power of Attorney. Can he/she sign for me at the closing so I won't have to attend?
Possibly. You need to inform your lender and the closing attorney that you want to do this, because the attorney will need to see the Power of Attorney beforehand to see if it is valid for a real estate closing. Also, the attorney will need time to prepare additional documents in this situation, and the original Power of Attorney will have to be recorded. If you are a borrower on the mortgage, your lender also has to approve your non-attendance at the closing through the Power of Attorney; many lenders will require you to attend anyway. (If you want the loan).
When can I, the seller, get my money from the closing?
In South Carolina, the closing attorney is allowed to disburse any funds, including the seller's proceeds and the realtor's commission, at closing, so long as the Purchaser has brought "certified" funds, such as an official bank check, certified check, cashier's check, or money order (or wire transfer, or even cash). The attorney is then responsible for having all documents recorded in the County Register of Deeds office. This means that you will get your proceeds check at the closing table. However, if you are simply refinancing your mortgage, your loan will not disburse until three (3) business days following the date you sign the closing documents.