Do you need a real estate attorney to close in South Carolina?

What the law requires

The rule comes from court decisions, not from a statute. The South Carolina Constitution gives the Supreme Court the duty to regulate the practice of law, and the Court has decided case by case what counts as practicing law (Doe v. McMaster, 2003).

In 1987, State v. Buyers Service Co. divided a home purchase into four steps that must be performed or supervised by a South Carolina-licensed attorney. As the Court summarized them in 2017 (Boone v. Quicken Loans):

1. preparing the deed, note and other documents for the loan and the transfer;
2. examining the title and preparing title abstracts for people other than attorneys;
3. overseeing the closing and instructing the parties on how to sign the legal documents;
4. giving instructions to the county office on how to record the documents.

In 2006, in Doe Law Firm v. Richardson, the Court added a fifth step: disbursing the funds. The Court’s 2003 decision in Doe v. McMaster said the same four steps exist in a refinance, so the rule is not limited to purchases.

The rule does not mean the lawyer personally does every task. In Boone the Court wrote that it “has never found that, as a matter of consumer protection, attorneys are required to personally conduct the myriad clerical tasks” in preparing for a closing. A refinance is not unauthorized practice, it said, if a licensed South Carolina attorney is involved at each critical stage and uses independent professional judgment, including making corrections when needed.

Who conducts closings in practice: attorney, title company or escrow

Closings in South Carolina run through an attorney’s office. The Court rejected the idea that a title company’s work was “merely incidental” to its business. In Doe v. McMaster it held that a title company’s title search and preparation of title documents without direct attorney supervision was the unauthorized practice of law, and that this work is permissible only when a licensed attorney supervises it.

What the cases allow is a division of labor under attorney supervision:

• A lender may prepare loan documents if an independent attorney reviews them and corrects them as needed.
• A title company may order the search, if the attorney supervises that step.
• The attorney supervises the closing, answers the borrower’s questions, and gives instructions on recording and on paying off the old mortgage.

In Boone the Court found that licensed South Carolina attorneys were involved “at every critical step” of the refinances and rejected a finding of unauthorized practice. Whether a specific arrangement is allowed depends on its facts.

The consequences of skipping the lawyer fall mostly on lenders. In Matrix, a lender that closed a refinance through a title company with no attorney supervision was barred from equitable subrogation, a remedy that would have let it step into the position of the mortgage it paid off. The opinion was re-filed on August 8, 2011, and the homeowners in Boone asked the Court to void mortgage liens filed after that date.

Typical attorney fee

No official source in this research gives a typical closing-attorney fee in South Carolina, and the court decisions do not set one. The fee is set by the attorney and the party who hires him or her. Ask for it in writing before you choose where to close, and look for it among the closing figures your lender and the closing office give you. Our closing costs guide for South Carolina lists the other lines on those forms, and closing costs explained walks through each one.

When an attorney is worth it anyway

Because the closing attorney is a given, the practical question is whose lawyer it is.

• A lender’s attorney may serve you too, with your consent. In Doe v. McMaster the Court noted that a lawyer retained by the lender who also advises the buyer may have a conflict, because the lender and borrower have adverse interests. It declined to bar the arrangement outright, ruling that the lawyer may take part after giving full disclosure of the role to both parties and obtaining consent from both.
• Contract questions come before closing. The state disclosure form tells owners and purchasers that they are “solely responsible to consult with their attorneys regarding any disclosure issues.” See South Carolina seller disclosure.
• Title and recording issues. Title examination and recording instructions are two of the steps the Court treats as legal work. See title insurance explained.
• A dispute after closing. If a seller gave false answers on the form, or a closing went wrong, a lawyer can say what remedies exist. We do not give personal legal advice.