A Bad Mistake, In Deed: Avoid this Common Divorce Pitfall
Posted on May 02, 2018 by
Jennifer T. Kerr
Divorces are obviously delicate and emotionally fraught situations, and most people getting one want nothing more than to turn the page quickly and move on with their life. But sometimes the wish for closure causes those involved to overlook key details, such as the steps necessary to make sure that property gets transferred as intended. A frustrating, time-consuming and costly experience awaits those who don’t nail things down at the time of the divorce.
Because many divorces involve some kind of real estate, it is important to remember several key concepts. continue reading
Court of Appeals Protects Recurrent Retirement Plan Contributions from Post-Judgment Attachment
Posted on Apr 23, 2018 by
Kristen N. Nichols
A recent, very debtor-friendly decision of the South Carolina Court of Appeals essentially put most routine retirement account contributions beyond the reach of creditors seeking to satisfy past judgments. The court made clear its strong stance toward protecting individuals’ retirement accounts and, for one of the first times, explicitly said that funds deposited into retirement accounts generally can’t be undone as fraudulent transfers.
The debtor in the case, First Citizens Bank v. Blue Ox, signed a confession of judgment after his LLC had defaulted on loan payments owed to its bank. After failing to pay the judgment, the debtor contributed money to his retirement accounts as well as a 529 college savings account. The bank contended that it could attach these post-judgment contributions because they were fraudulent transfers and therefore not subject to protections otherwise provided to retirement accounts under Sections 5-41-30(A)(13) and (14) of the South Carolina Homestead Exemption Act. Rejecting the bank’s claims (and reversing the lower court), the Court of Appeals ruled that Statute of Elizabeth, which generally prohibits fraudulent conveyances, did not apply because the movement of money did not transfer ownership from the debtor but rather converted the funds into protected assets that still belonged to him.
The Court of Appeals further noted that while there were several “badges of fraud” present, on balance there was no fraudulent intent because the “contributions were limited in amount, were not secretive in nature, and most tellingly, were in line with [the debtor’s] long-standing pattern of investing in his retirement – conduct that is encouraged by the very existence of [protections typically afforded to IRAs and 401(k) accounts under the Homestead Exemption Act].” continue reading
Solar Tax Credits & Other Incentives Heat Up Energy-Efficient Demand in South Carolina Construction
Posted on Aug 08, 2017 by
R. Taylor Speer,
Thomas M. Kennaday
With an abundance of sunshine in South Carolina (August’s total solar eclipse notwithstanding), developers and builders are jumping on ways to take advantage of the sun’s rays to provide energy-efficient construction.
Solar panels provide cheap energy, but a major obstacle to mainstream use is the upfront installation cost. The most common residential solar installation – a 5-kilowatt system – costs about $20,000 to install in South Carolina, but generates only about $500 to $1,000 in annual energy savings.
Federal and state tax credits are the most significant tool to offset initial costs, along with rebates and other incentives from private utilities in South Carolina. A lucrative rebate for Duke Energy customers was exhausted at the end of January after falling victim to its own popularity. The utility offered a $5,000 annual rebate for the average household by paying $1 per watt of energy generated from solar panels. Another program for South Carolina Electric & Gas customers offered performance payments of up to 4 cents for every kilowatt hour of electricity generated from solar panels. It expired at the end of 2016.
Still, South Carolina users enjoy some of the best tax credits in the country and may be able to take advantage of new legislation pending in the House. continue reading
Eminent Domain in South Carolina: What Happens When the Government Wants Your Land?
Posted on Jul 24, 2017 by
Jeffrey L. Payne
South Carolina property owners and businesses have taken notice of recent actions across the state where the government is using eminent domain authority to clear the way for roads, infrastructure and other public uses.
Although a state constitutional amendment in 2006 prohibited the use of eminent domain for economic development, eminent domain is on the table for other uses and has been viewed as a bargaining tool for municipalities to accelerate the sale of coveted land.
Negotiations to acquire property for a library and museum in Myrtle Beach are continuing after the city council in February allowed the city manager to use eminent domain, if necessary, to force the sale of two downtown parcels.
In April, the Charleston City Council authorized the use of eminent domain to acquire the site of a former supermarket for a new intersection and park. One month later, the city reached an agreement with the developer to purchase the 2-1/2-acre site for $3 million.
And plans for Interstate 73, which aims to connect Myrtle Beach to North Carolina and up to Michigan, could involve more right-of-way acquisitions across South Carolina. continue reading
7 Steps to Prepare Your Business for Sale
Posted on Apr 07, 2017 by
Ryan T. Judd
Putting your business up for sale is a major decision with implications that extend far beyond the financial considerations. Selling your company affects not only your future but the future of your valued employees. What’s more, letting go of a business you’ve grown for years or even decades can be a difficult process.
First, you need to consider whether you are truly ready to sell your business. Talk to family members and others who care about your future and may have a stake in your decision. Working through any personal concerns before proceeding will make the entire process a lot easier. continue reading
Not On My Land? Clarifying the Elements For a Prescriptive Easement
Posted on Dec 20, 2016 by
Kristen N. Nichols
Imagine finding that a neighbor, or a company, or even the public has acquired the right to use part of your property without compensating you. A recent ruling in South Carolina sets new case law and provides important guidance for issuers of title insurance, parties impacted by property litigation and anyone who may be seeking advice about the validity of an easement, which is a right to cross or use someone else's land for a specified purpose.
In Simmons v. Berkeley Electric – a property dispute over whether utility companies had the right to use a individual's land for water and power lines – the South Carolina Supreme Court held that the Court of Appeals erred in recognizing two methods, adverse use and claim of right, of proving the third element of a prescriptive easement. (A prescriptive easement is earned by regular use; it is not something that is purchased, negotiated or granted, and the user does not gain title to the land.)
This ruling concluded that when analyzing the third element of a prescriptive easement, South Carolina courts should apply a new test for adverse use, which is the practice of using property without the authorization of the owner. continue reading
Avoid These Legal Snares in 2016
Posted on Mar 18, 2016 by
Jeffrey L. Payne
We always like to look ahead and advise our business clients about legal issues that may receive more attention throughout the year. Some are pushed to the forefront by public policy and politics – immigration, for example. Other issues, such as data protection and workplace harassment training, always are important, but the beginning of the year is a good time to review whether your business follows best practices. continue reading
Court Comes Down Hard On Bank That Didn’t Satisfy Open-Ended Mortgage in 90 Days
Posted on Dec 02, 2015 by
Kristen N. Nichols
The South Carolina Supreme Court recently sent a clear message to banks: all mortgages – including those with a home equity line of credit (HELOC) – must be satisfied within 90 days of receiving a payoff. Banks that don't have a procedure for timely execution of payoffs where there is a line of credit should implement one immediately or risk certain liability. continue reading
Why You Must Renew South Carolina Buy-Sell Agreements to Reflect Inclusion of Goodwill
Posted on Nov 13, 2015 by
Jeffrey L. Payne
A recent South Carolina court ruling has adopted the emerging majority approach utilized by the courts nationwide, and for the first time has recognized the distinction between “enterprise goodwill” and “personal goodwill” for equitable distribution purposes in a divorce action. continue reading
Guarantors Can’t Slow Down Foreclosures by Asking for a Jury Trial
Posted on Feb 19, 2015 by
Jeffrey L. Payne
One way for debtors to slow down the foreclosure process in South Carolina has been to file counterclaims and request a jury trial. For guarantors of bad loans, that door was closed in January, thanks to a decision by the South Carolina Supreme Court. In what banks should regard as a victory for creditors’ rights, the high court said that guarantors who have been included in a foreclosure action in order to seek a deficiency judgment do not have a right to a jury trial. continue reading
Don’t Misunderstand the Memorandum of Understanding
Posted on Jan 20, 2015 by
Lanneau Wm. Lambert, Jr.
Can a city change its mind about development partners after signing a memorandum of understanding (MOU)?
That question bounced around in South Carolina courts for a decade, and the state Supreme Court issued the final answer last summer. A city – or any party – may back out of an “understanding” that doesn’t include a definitive agreement. continue reading
Unloading Beasts of Burden: SC’s New Expedited Foreclosure Law
Posted on Aug 26, 2014 by
TURNER PADGET LITIGATION TEAM
South Carolina’s real estate market is not yet out of the woods from recession woes. According to a June 2013 RealtyTrac nationwide study, South Carolina ranks ninth in the nation for the number of abandoned properties in foreclosure. South Carolina’s ranking is ahead of its neighboring states, Georgia and North Carolina, despite having half as many housing units as these states. continue reading