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Archive for the "Real Estate" Category

When Entering into a Commercial Lease, Understand Your Obligations

Entering into a commercial lease is a significant responsibility for both the landlord and tenant. Before a commercial lease is finalized, it is critical that both sides perform due diligence on the lease provisions and protections.

In City Electric Supply v. Johnny Murray – a lease dispute between an electric company and a family-run boat repair shop in North Charleston – the Court of Common Pleas granted the plaintiff’s motion for summary judgment and ordered the tenant to be evicted from the property. The case featured several legal missteps by the defendant that can serve to inform parties who are entering into commercial leases.

Not On My Land? Clarifying the Elements For a Prescriptive Easement

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.

Your Right to be Free of Your Neighbor’s Water

Almost any change that people make to the natural landscape can alter the flow of surface water, and that often creates problems that grow into legal disputes. It’s an area where property rights, nature and engineering intersect in unpredictable ways.

A new subdivision, parking lot, expansion of a building or even change in the use of rural land can result in water washing out a neighbor’s lawn, flooding homes, attracting mosquitos in standing pools, depositing silt on a golf course, polluting a backyard pond or rendering crop land less profitable. While we typically see these problems emerge in urban developments, disputes can arise anywhere water flows. 

Be Careful What You Sign: Red Flags in Commercial Contracts

When businesses sign a contract, they’re usually focused on the opportunity it represents – a new customer, a better supplier or a partnership that expands their reach. Unfortunately, when we, as lawyers, see some of these same contracts, it’s after the air has gone out of such expectations and a deal has soured. 

While our best advice is to have every contract reviewed by your attorney, we realize that most businesses aren’t going to do that for every agreement. If there is a lot of money – or risk – involved, consider asking your attorney to review a contract – a process that usually isn’t time consuming for legal counsel familiar with your business. 

However, in those cases where you choose not to make a call to your attorney, here are some things to watch for based on our experience. 

How to Pick a Lawyer

Just as we all need a family doctor who we can rely on, every small business eventually finds that it needs a relationship with a lawyer. As with the family doctor, many small business owners find it beneficial to develop rapport with one lawyer as a point of contact. While the relationship attorney may sometimes direct the client to someone with specific experience, it’s reassuring to begin the conversation with someone who understands your business and industry – and remembers the names of your kids.

I frequently go shopping for other lawyers myself, so I have some experience in this area. In my case, I’m usually looking for a lawyer or firm in another state who can handle a matter for a client. Even as a lawyer, it’s not always easy to judge if another is going to be a good fit, so I understand how business owners may find it difficult to pick an attorney. Here’s my test for picking a lawyer. 

Eminent Domain in South Carolina:  Don’t Sell until the Price is Right

Property owners in South Carolina no longer have to fear that their land will be taken from them for an economic development project. Voters put the brakes on what they saw as the abuse of eminent domain in 2006 with a constitutional amendment that forbids the use of eminent domain for economic development.

Nonetheless, eminent domain is alive and well for other purposes in South Carolina, and here’s what you need to know.

Don’t Automatically Include Arbitration Clauses in Commercial Contracts

For years, mandatory arbitration clauses have been almost automatically included in many commercial contracts, because they’ve been regarded as cost-effective detours for matters that might otherwise work their way through the courts. Over the last few years, we’ve adopted a more critical view of arbitration, and now regard it as a good strategy for some clients, but not for others.

Don’t Misunderstand the Memorandum of Understanding

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. 

Unloading Beasts of Burden: SC’s New Expedited Foreclosure Law

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.